The EPA and the Army Corps of Engineers (Corps) have granted requests from stakeholders seeking to have the agencies extend the comment period on the Agency’s proposed recodification of the definition of waters of the United States ((WOTUS), July 27, 2017, FR). The comment period has now been extended by 1 month to September 27, 2017 (August 22, 2017, FR).
The proposed recodification would keep the WOTUS definition within the framework of the regulations that existed before the EPA and the Corps issued their definition in the 2015 Clean Water Rule (CWR). The recodification, which the EPA and Corps call their first step in defining WOTUS, will be followed by step two, in which the agencies will pursue notice-and-comment rulemaking on a “substantive reevaluation” of the WOTUS definition.
The EPA and Corps have not yet requested comments on changing the 2015 CWR, but this has not stopped stakeholders from offering suggestions. For example, in June 2017, the National Association of Clean Water Agencies (NACWA) wrote to the EPA to request that any new definition rule maintain exclusions that currently exist for public wastewater treatment and stormwater utilities. Some of these exclusions have existed for decades, and some were added in the 2015 CWR.
The NACWA represents public wastewater and stormwater agencies of all sizes nationwide.
One new exclusion in the CWR important to the NACWA is for control features constructed to convey, treat, or store stormwater.
“The 2015 Clean Water Rule added this new exclusion—which reflects longstanding agency practice—that will lead to more certainty over the status of green infrastructure/low impact design stormwater features regarding permitting and maintenance, as well as many other stormwater control features,” wrote the NACWA. “A clear exemption for stormwater features will also help with consistency among Corps districts as many now require [Clean Water Act (CWA)] Section 404 permits to clean out stormwater features that have been colonized with wetland plants. Since routine clean out of stormwater features is necessary for their proper functioning, it is counter-productive to require a permit for their maintenance.”
Other exclusions from WOTUS that the NACWA also wants kept are for wastewater recycling “structures” used to improve long-term water sustainability and for groundwater.
Regarding groundwater, the NACWA believes the new exclusion included in the CWR should be clarified. The concern derives from the assertion in the CWR that groundwater and other geographic features that are otherwise excluded from the definition of WOTUS may function as point sources under CWA Section 502(14) such that discharges of pollutants to waters through these features would be subject to other CWA regulations.
“CWA statutory and legislative history do not support regulating groundwater as a point source,” writes the NACWA. “Furthermore, EPA has subsequently backed away from its assertion that groundwater can function as a point source. In May 2016, the U.S. Department of Justice filed an amicus brief on behalf of EPA in a Ninth Circuit appeal of a decision advancing the theory. In the brief, the Agency stated that groundwater is not a point source, is not a WOTUS and the court’s application of the significant nexus test is erroneous. (see Hawaii Wildlife Fund v. County of Maui, No. 15-17447). Considering the foregoing, NACWA recommends that the new definition rule clearly exclude groundwater and omit language about groundwater functioning as a point source.”
NACWA’s letter is here.