In early December 2021, U.S. EPA and the U.S. Army Corps of Engineers (USACE) published a proposed rulemaking for a "Revised Definition of Waters of the United States." Rather than repealing and then replacing the previous administration's Navigable Waters Protection Rule, the Biden administration has instead directly proposed a revised WOTUS definition that, if finalized, would replace the current regulations. 

The proposed definition reflects the original 1986 WOTUS regulations, with modifications intended to address subsequent U.S. Supreme Court precedent in the cases of Riverside Bayview, SWANCC, and Rapanos.

Specifically, the proposed rule would include the following within the definition of WOTUS: traditional navigable waters, interstate waters and the territorial seas (and their adjacent wetlands), as well as other waters and tributaries (and their adjacent wetlands) that are relatively permanent or that either alone or in combination with similarly situated waters significantly affect the chemical, physical, or biological integrity of the foundational waters. The definition would also include most impoundments.  

However, while the proposal would keep the longstanding exclusions for waste treatment systems and prior converted croplands codified in EPA and USACE's regulations, it would not retain the existing exclusions for stormwater control features, water recycling structures, and groundwater. Those exclusions were first codified in the 2015 Clean Water Rule and were retained in the 2020 Navigable Waters Protection Rule. 

The proposed reasoning for omitting the additional exclusions is that they were not included in the "familiar and longstanding framework" in place prior to the 2015 rule, and therefore are not "consistent with the goal of returning" to that framework.  However, the proposal does note that the Agencies "expect to implement the proposed rule consistent with longstanding agency practices," in which they have "generally not asserted jurisdiction" over features such as stormwater control features, water recycling structures, and groundwater.

NACWA would like members' feedback on whether a failure to codify express exclusions for stormwater control features, water recycling structures and groundwater in EPA and USACE's WOTUS regulations could negatively impact your operations.  

Specific examples of clean water management, recycling, reuse and green infrastructure practices that could be potentially complicated absent clear regulatory language concerning their jurisdictional status would be particularly helpful.  Likewise, instances where the existing exclusions were useful in implementing Clean Water Act programs, enhancing public understanding of utility operations or avoiding jurisdictional confusion would be very beneficial.  We would also like to hear of any other more general concerns and thoughts members are willing to share. 

NACWA has long advocated for key exclusions in the WOTUS definition that support the work done by the clean water community in advancing the purposes of the CWA.  We were successful in securing the codification of such exclusions in previous WOTUS revisions and are working towards obtaining the same clear and defensible outcome for our members in the current definitional rewrite. To do so, direct input from NACWA members will be critical. 

NACWA will be submitting comments to the Agencies by the February 7, 2022 deadline. Any feedback from members on the above prior to that date would be greatly appreciated. Please contact Emily Remmel, NACWA’s Director of Regulatory Affairs, with questions or specific feedback.