The American Public Power Association recently filed comments in response to Environmental Protection Agency and the Army Corps of Engineers request for recommendations on defining “waters of the United States” (WOTUS), consistent with Sackett v. EPA.
The EPA and the U.S. Army Corps of Engineers in August 2023 issued a final rule that conformed the definition of “waters of the United States” to a Supreme Court decision -- Sackett v. Environmental Protection Agency.
EPA on March 12 said it would review the definition of WOTUS. “Given the U.S. Supreme Court’s watershed decision in Sackett v. Environmental Protection Agency, it is time for EPA to finally address this issue once and for all in a way that provides American farmers, landowners, businesses, and states with clear and simplified direction,” EPA said in a March 12 news release.
In its April 23 comments, APPA said any new WOTUS definition must conform to the U.S. Supreme Court’s authoritative Clean Water Act interpretations.
APPA said that a forthcoming rule should incorporate three essential principles:
• The WOTUS definition should encompass only three specific categories of waters: traditional interstate navigable waters, waters that maintain a relatively permanent presence, and wetlands immediately adjacent to either of these water types;
• The definition of “relatively permanent” waters should be strictly limited to water features that contain flowing or standing water consistently throughout most of the year; and
• Jurisdictional “adjacent wetlands” should only include those wetlands that directly connect to covered waters in a way that makes them essentially indistinguishable from one another.
APPA also said that the agencies must prioritize durable rulemaking rather than relying on the issuance of guidance and must clarify that “adjacent” wetlands are jurisdictional only when they are indistinguishably part of another WOTUS.
The Agencies should also exclude most ditches from the definition of WOTUS and retain the waste treatment systems exclusion with certain revisions, it added.
In addition to the open comment period, EPA will host a series of listening sessions with affected stakeholders to gather further information for the development of a new WOTUS definition.
