The American Public Power Association on Jan. 5 filed comments in response to the Environmental Protection Agency’s and the Army Corps of Engineers' proposal to revise the definition of Waters of the United States.
APPA’s comments generally support the overall direction of the Proposed Rule.
APPA offers several recommendations to clarify the definition, align it with the Clean Water Act and U.S. Supreme Court precedent, and facilitate effective implementation. Our comments emphasize the importance of clear, predictable, and workable federal regulations that balance environmental protection with the operational needs of public power utilities.
The key issues APPA outlined in the comments include:
- Traditional Navigable Waters (TNWs): APPA supports clarifying the scope of traditional navigable waters (TNWs), removing “interstate waters” as an independent category, and refining the definition of “tributary” to require relatively permanent flow and a direct connection to TNWs.
- Relatively Permanent Standard: APPA agrees with defining “relatively permanent” as waters that flow year-round or at least during the wet season, excluding features with only intermittent or rain-driven flow. The use of tools such as the Antecedent Precipitation Tool (APT) and Web-based Water Budget Interactive Modeling Program (WebWIMP) is supported for determining wet-season conditions.
- Adjacent Wetlands: APPA supports the proposed definition of “continuous surface connection” for adjacent wetlands, ensuring only those wetlands physically connected to jurisdictional waters during the wet season are regulated.
- Exclusions: APPA strongly supports maintaining and clarifying exclusions for ditches, waste treatment systems, and groundwater, which are critical for utility operations. The Association urges clear documentation and evidence-based approaches for implementing these exclusions.
- Timely Jurisdictional Determinations: APPA recommends establishing predictable timeframes for issuing approved jurisdictional determinations (AJDs) to avoid project delays and regulatory uncertainty.
