On April 21, EPA and the U.S. Army Corps of Engineers published their “Waters of the U.S.” rule proposal in the Federal Register, starting the clock on a 90-day public comment period. According to EPA, the proposed rule “does not protect any new types of waters that have not historically been covered under the Clean Water Act and is consistent with the Supreme Court’s more narrow reading of Clean Water Act jurisdiction.” Protected waters include most seasonal and rain-dependent streams and adjacent wetlands. Where connectivity to downstream waterways is less certain, waters will be evaluated on a case-by-case basis.
AMWA staff is working with Regulatory Committee members to develop comments on the proposal. As expected, initial feedback from committee members has been mixed. Some members have come out fairly strongly in favor of the potential source water protection benefits of the rule, while others have serious concerns about the potential impacts, particularly on built infrastructure. There is also concern over intermittent/seasonal upland tributaries, especially in arid regions.
Based on this feedback, we anticipate the association will express general support for source water protection while at the same time requesting consideration of exemptions along the lines of those already granted to agricultural and wastewater interests for similar types of infrastructure and operations. Like many stakeholders, we will also look for a more definitive, quantitative definition of the "significant" threshold for establishing a nexus.
In the coming month (barring an extension, comments are due by July 18), AMWA will circulate a copy of preliminary comments to the regulatory committee for review. We are also working with other water associations to evaluate the potential for submission of a joint comment letter that articulates our common concerns.
The rule proposal and numerous support documents are available through EPA’s “Waters of the United States” webpage.
[Update: On June 10, 2014, EPA and the Army Corps announced an extention to the comment period - comments are now due on October 20, 2014.]