NACWA Submits Comments on Latest WOTUS Proposal

Feb 9, 2022

In comments submitted February 7, NACWA weighed in once again on the latest iteration of EPA and the U.S. Army Corps of Engineers’ (USACE) proposed rulemaking to establish a “durable” Waters of the United States (WOTUS) definition.

NACWA’s comments highlighted the importance of codifying exclusions for stormwater control features, water recycling structures and groundwater from any WOTUS definition. These critical exclusions were omitted from this round of regulatory rulemaking, despite having been included in previous rulemakings, in an effort by EPA and USACE to return to the “familiar and longstanding framework” of WOTUS offered by the 1986 regulations and subsequent U.S. Supreme Court decisions.

NACWA has significant concerns that the omission of these key exclusions will impact public clean water utilities and stormwater agencies operating and maintaining existing green infrastructure projects, as well as those wishing to develop them in the future. Without an exemption, these projects could require demanding and costly case-by-case permitting hurdles—effectively deterring these projects and the water quality benefits they provide.

The proposed WOTUS rulemaking does maintain the exclusion for waste treatment systems, but NACWA asked the agencies to add further clarification that all components of a waste treatment system be excluded from WOTUS. The previous WOTUS iteration, the Navigable Waters Protection Rule (NWPR), included language clarifying that “all components [of a system]… designed to either convey or retain, concentrate, settle, reduce, or remove pollutants, either actively or passively from wastewater prior to discharge (or eliminating such discharge),” were part of the waste treatment system exclusion. NACWA would like to see similar clarifying language reinstated.

Further, NACWA asked the agencies to remove extraneous modifiers such as waste treatment systems “designed to meet the requirements of the Clean Water Act,” which were not included in the NWPR and create unnecessary regulatory confusion.

While EPA and USACE say they “remain committed to establishing a durable definition of WOTUS,” the future of the current proposal is unclear given the U.S. Supreme Court’s recent decision to review the scope of WOTUS in Sackett v. EPA.

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