APPA Weighs In On Proposal To Revise Definition Of Waters of the United States

by Paul Ciampoli
APPA News Director
February 13, 2022

Since 2015, jurisdiction under the Clean Water Act (CWA) has been in a near constant state of flux, creating a challenging regulatory landscape for project developers and the regulatory community. On Feb. 7, the American Public Power Association (APPA) submitted comments to the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers in response to a proposed rule that would revise the definition of WOTUS.

The proposed rule is considered a first step and  replace the Navigable Water Protection Rule (NWPS) and would codify the pre-2015 definition of WOTUS, with amendments to incorporate the EPA’s interpretation of Supreme Court case law.

APPA’s comments voiced concern about elements of the proposed rule that unduly expanding the definition of WOTUS.

“APPA supports a clear and implementable definition of WOTUS,” it said. “In order for the electric utility sector to construct, operate, and maintain facilities in support of the clean energy transition and meet their service obligations, the WOTUS definition must be easily understood and uniformly applied across the country.”

APPA has over the years provided to the agencies its position with respect to developing a clear and easily implementable WOTUS definition and the Proposed rule marks the latest development in nearly two decades of administrative proceedings, not to mention litigation, it noted.

The trade group voiced concerns with the application of the Commerce Clause in determining whether water bodies meet one or more of the WOTUS jurisdictional tests under the proposed rule. “Specifically, non-navigable waterways should not be subject to WOTUS jurisdiction, however, they could be regulated under state authorities,” APPA said.

According to APPA, the pre-2015 WOTUS definition allowed for an overly broad traditional navigable water interpretation.

EPA and the Corps claimed jurisdiction, under 1986 regulations, over waters used by interstate or foreign travelers for recreational or other purposes, with no foundation in actual navigable waters, APPA said.

“APPA is concerned that the proposed rule will unduly expand the waters that would be subject to WOTUS which will result in regulatory uncertainty for our members as they try to advance clean energy infrastructure projects.”

APPA said it does not support the designation of interstate waters as a standalone category of WOTUS. “We do not concur with the Agencies position that these waters by virtue of crossing state lines can be considered WOTUS irrespective of whether they are navigable,” it said.

The proposed rule restores interstate waters as a standalone category, once again placing such waters on equal footing as traditional navigable waters and territorial seas, it added.

APPA also voiced concerns with the proposal by EPA and the Corps to include “other waters” as a category of jurisdictional waters.

“We believe their inclusion in the definition will result in a case-by-case application that is applied inconsistently by different Corps districts, creating confusion, delay, and leading to additional regulatory requirements and burdens.”

The proposed rule goes farther than the text of the 1986 regulations, APPA said, by expressly asserting jurisdiction over “other waters” under the relatively permanent and significant nexus standards from a 2006 case (Rapanos v. United States).

“The ‘other waters’ category could be applied in an exceptionally broad manner by regulators and serve as a fallback for the agencies to assert jurisdiction over a wide range of features,” APPA argued.

At the same time, APPA said that it appreciates that the agencies have maintained the waste treatment system exclusion from the definition of WOTUS.

This exclusion “is critical for electric utilities to provide reliable and affordable electricity across the country, including to rural areas, based on the importance of features such as cooling and settling ponds to our generation and transmission facilities. APPA recommends the agency define waste treatment systems.”