AMWA submitted comments to EPA and the U.S. Army Corps of Engineers (USACE) April 12 in response to the agencies’ February 14, 2019 proposal to redefine the Waters of the United States (WOTUS) definition. This rule would replace the 2015 Clean Water Rule and, if finalized, would adopt a narrower scope for federal jurisdiction over the nation’s waters in comparison to the 2015 rule. The new rule follows closely with the late Supreme Court Justice Anton Scalia’s plurality opinion from the landmark court case Rapanos v. United States, which concluded that WOTUS should be restricted to “relatively permanent, standing or continuously flowing bodies of water.”
AMWA’s comments support the overall goal of streamlining the regulatory process and clarifying the definition of WOTUS but highlights issues that EPA and USACE should consider while developing the final rule. The association emphasizes the importance of preventing pollution of source waters in order to protect public health and urges EPA and USACE to “be cognizant of the rule’s impact on source waters, particularly those used for drinking water, and to finalize language that is protective of these vital resources.”
AMWA reiterates previous comments on the need for drinking water infrastructure to be excluded from the definition of WOTUS in a similar fashion to waste treatment systems, which have been excluded since 1979 under the Clean Water Act (CWA). The letter underlines the fact that “current and past practice under the CWA has been to exclude [day to day operations of drinking water facilities] from jurisdiction under WOTUS” and that the association does not believe it was the intent of Congress, EPA, or USACE that this infrastructure be included under the definition.
On top of these requests, AMWA also asks that EPA and USACE further investigate possible limitations that states might face in implementing their own policies for protecting their waters, considering many states have laws that prevent them from being more protective than the federal law. In light of this, AMWA asked for a delay in the implementation of the new definition to allow states ample time to determine the possible impacts to their waters.
Finally, AMWA lists concerns with the cost-benefit analysis completed for the WOTUS proposal. The association states that the “current analysis is lacking in sufficient detail and consideration for the needs and limitations of drinking water utilities” and encourages both EPA and USACE to “perform a more rigorous analysis using sound scientific assessments in order to better estimate the impact of this new rule on treatment costs for drinking water.”
A final rule is expected by the end of the year.