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Today the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers released the final Clean Water Rule, often referred to as the Waters of the United States or WOTUS rule. The rule has consumed much of EPA’s time over the last several years and has been the focus of intense criticism from a range of stakeholders and Members of Congress from both sides of the aisle.

A pre-publication version of the rule, along with supporting materials, is available on EPA’s website. EPA has also made available a fact sheet  and a blog post from Administrator McCarthy.

This Advocacy Alert provides a brief summary of the provisions from the final rule that are of most importance to the clean water community.

NACWA Concerns Addressed in Final Rule

NACWA has focused its attention on maintaining the current exemptions for wastewater treatment systems and ensuring that municipal separate storm sewer systems (MS4s), green infrastructure and recycled water projects were not incidentally regulated as jurisdictional waters. NACWA is still reviewing the final rule, but below is a quick summary of the key provisions for the clean water community that demonstrate EPA heard and addressed NACWA’s concerns.

The final definition of ‘waters of the United States’ maintains the key elements NACWA has fought to preserve and addresses a number of the concerns NACWA raised in its comments:

• As proposed, the final definition makes no substantive changes to the existing exclusion for waste treatment systems designed to meet the requirements of the CWA. “Only ministerial changes to delete an outdated cross reference are made to the exclusion for waste treatment systems.”
• As proposed, the final definition exempts groundwater and groundwater drained through subsurface drainage systems from federal jurisdictional reach, which the Agencies “have never interpreted to be a ‘water of the United States’ under the Clean Water Act.”
• Newly added in the Final Rule – a key recommendation from NACWA’s comments – the definition specifically excludes: “Stormwater control features constructed to convey, treat, or store stormwater that are created in dry land.”
  
  EPA clarifies in the preamble to the rule that the new exclusion for stormwater control features includes green infrastructure. “This rule is designed to avoid disincentives to this environmentally beneficial trend in stormwater management practices.” In addition, EPA’s press release on the rule stresses that: the definition maintains “the status of waters within Municipal Separate Storm Sewer Systems. The rule does not change how those waters are treated and encourages the use of green infrastructure.”
  
  EPA further states that stormwater control features “have evolved considerably over the past several years, and their nomenclature is not consistent, so in order to avoid unintentionally limiting the exclusion, the agencies have not included a list of excluded features in the rule. The rule is intended to exclude the diverse range of control features that are currently in place and may be developed in the future.”
• Newly added in the Final Rule – a key recommendation from NACWA’s comments – the definition specifically excludes “wastewater recycling structures constructed in dry land; detention and retention basins built for wastewater recycling; groundwater recharge basins; percolation ponds built for wastewater recycling; and water distributary structures built for wastewater recycling.”
• Revised for the Final Rule, the definition specifically excludes the following ditches:
  • 1. Ditches with ephemeral flow that are not a relocated tributary or excavated in a tributary.
    2. Ditches with intermittent flow that are not a relocated tributary, excavated in a tributary, or drain wetlands.
    3. Ditches that do not flow, either directly or through another water, into a water identified in paragraphs (1)(i) through (iii) of the waters of the U.S. definition.

Both the House and Senate have been working on measures to limit EPA’s ability to finalize or implement the rule, but the White House has promised to veto any such measure. Those in favor of stopping EPA and the Corps from moving forward with the current rule do not have the votes to override a veto. It is unclear how Congress will proceed at this point, but the matter is likely not settled. In addition, NACWA fully anticipates that legal challenges will be filed shortly after the final rule is officially published in the Federal Register.

NACWA will participate in a call this afternoon with EPA staff who will provide an update on the rule and the Association will provide updates as reaction to the rule unfold.