Public power utilities need a clear definition of the waters of the United States (WOTUS), given that the definition is crucial as the electric utility industry transitions its generation fleet to low and non-emitting generation resources, the American Public Power Association (APPA) recently said. Moreover, any new WOTUS rule should be developed with consideration of the role states play in water and water management, APPA said.
APPA’s Sept. 3 comments came in response to the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) request for recommendations on defining WOTUS.
In August 2021, the U.S. District Court for the District of Arizona vacated a Trump Administration rule that set a new definition for WOTUS.
At issue in the proceeding is a final rule -- the Navigable Waters Protection Rule (NWPR) -- announced last year by EPA and the Corps. The NWPR addresses traditional navigable waters and territorial seas but narrowed the extent of federal jurisdiction by excluding isolated water bodies, “ephemeral” waters that form only in response to rain, and most ditches.
The final rule called for four categories of waters are federally regulated: (1) The territorial seas and traditional navigable waters; (2) Perennial and intermittent tributaries to those waters, (3) Certain lakes, ponds, and impoundments, and (4) Wetlands adjacent to jurisdictional waters.
APPA generally supported the NWRP rule as it provided clarity and certainty over the scope of jurisdictional waters.
The Arizona court remanded the NWPR to EPA and the Corps.
“Multiple administrations have grappled with how to define WOTUS and adopted differing definitions over the years. As a result, the regulated industry has been subjected to significant uncertainty regarding the WOTUS definition and how the agencies will apply it,” APPA said in its Sept. 3 comments.
Throughout the various comment processes, APPA has urged EPA and the Corps to:
- Avoid interpreting WOTUS in a way that fails to give appropriate weight to the explicit statutory policy to recognize, preserve, and protect the States’ traditional and primary authority over land and water use;
- Adhere to the full history of Supreme Court precedent on the definition of WOTUS;
- Give effect to the term “navigable” in the statutory text; and
- Draw bright lines between federal and state or tribal jurisdiction so that regulators and regulated entities can easily identify what features are subject to federal Clean Water Act (CWA) jurisdiction.
The NWPR fulfilled each of these key principles, and APPA believes the rule is protective and legally defensible on the merits, notwithstanding the concerns the agencies have expressed about the rule and even though the U.S. District Court for the District of Arizona granted the agencies’ request for a voluntary remand and ordered that the NWPR be vacated and remanded for reconsideration.
First, APPA said that the NWPR satisfies all of the key principles discussed above that any definition of WOTUS must adhere to in order to be defensible.
The NWPR “strikes an appropriate balance between protecting waters and wetlands and providing clarity and predictability to stakeholders and regulators, while respecting the CWA’s stated policy of preserving the states’ primary authority over land and water use, as well as relevant Supreme Court precedent,” APPA said.
The NWPR “provided long overdue certainty for APPA members, private landowners, and communities nationwide. Over the decades, the definition of WOTUS has at times expanded well beyond the limits of the agencies’ statutory authority under the CWA and the Constitution, at the expense of state and local authority. The NWPR sought to preserve the careful federal-state balance that Congress struck in the CWA and avoid the sorts of difficult constitutional questions raised by prior definitions of WOTUS.”
APPA went on to say that the NWPR “is far easier to implement consistently on the ground compared to prior WOTUS rules.” In APPA’s view, the NWPR “satisfies the core principles that the regulated community has consistently backed for well over a decade; it provides clarity and certainty for landowners and businesses; it respects the line that Congress drew in the CWA between federal and state authority; and it is protective of the environment while allowing for economic activity and use/enjoyment of land and water. A new definition of WOTUS should be modest in scope and build upon these key principals.”
In addition, APPA said that the definition of WOTUS is critical to the electric utility sector. “Our members operate increasingly diverse facilities, from wind, solar, and hydroelectric to nuclear and fossil, and are leading the transition to renewable energy sources and technologies and a more capable and resilient grid. These projects often require new transmission lines to connect to the grid, and utilities must also maintain and upgrade existing lines to ensure reliability.”
To lead this energy transition and meet service obligations, public power utilities must construct, maintain, repair and upgrade thousands of miles of transmission and distribution lines, which sometimes unavoidably cross waters of the United States.
“The scope of CWA jurisdiction has considerable regulatory consequences for public power utilities. Efficient and effective permitting is consistent with the Administration's focus on developing diverse, clean, and secure energy sources, and ensuring a reliable, resilient, and cost effective grid, but it is also essential to ensuring our members are able to bring renewable projects online and to maintain and upgrade the grid,” APPA said.
APPA also offered comments on the categories of jurisdictional and non-jurisdictional waters referenced in the pre-proposal notice.
For example, APPA said the Waste Treatment System (WTS) exclusion is long-standing, and has been in place since 1979, including in the 2015 Clean Water Rule. APPA expressed support for the continued exclusion of WTS from the WOTUS definition.
APPA did not support the inclusion of ditches as a WOTUS that did not have a direct connection to tributaries that contribute surface water flow to a WOTUS, or ditches that did not have a direct connection to lakes, ponds, and impoundments of jurisdictional waters, and wetlands adjacent to other jurisdictional waters.
Public Power Utilities Need A Clear WOTUS Definition
EPA and the Corps have indicated they plan to first propose a rulemaking that would put into place the pre-2015 WOTUS Rule regulations, “as amended to be consistent with relevant Supreme Court decisions.”
APPA said it has concerns with the agencies’ stated intent to propose a return to the pre-2015 regulations. “The pre-2015 regulations are overbroad in some respects and left substantial room for discretion and case-by-case variation.”
In addition, application of the pre-2015 regulations were complicated by the use of guidance documents that attempted to address Supreme Court precedent. The agencies then intend to propose a second rule that builds on the pre-2015 WOTUS regulatory foundation.
“Unclear regulatory definitions that depend on case-by-case analyses or overly expansive definitions increase costs and make it more difficult to build needed infrastructure, which could undermine the President’s goal to improve resiliency of infrastructure from climate change and improve access to clean, safe water, transportation, and electricity and broadband for low-income and disadvantaged communities,” APPA said.
The development of renewable generation resources “requires investment in critical transmission and distribution power lines, transformers, and substations to connect the new intermittent resources to the grid.” Whether it is a new, existing, or a retired generating unit, maintenance and construction is regularly performed on stormwater conveyances, other water management systems, waste management/treatment, building equipment pads and Oil Spill Prevention, Control, and Countermeasures (SPCC) containment areas, the trade group pointed out.
Moreover, nearly every program administered under the CWA relies on determining the location and geographical boundaries of WOTUS.
APPA also said that a new WOTUS rule should be developed with consideration of the role states play in water and water management, noting that the CWA “is steeped in cooperative federalism, state and local governments have invested substantial resources to understand water resources and processes to delineate water features within their states.” The Act also provides states a vital role in implementing the CWA.
The development of a new WOTUS definition must preserve traditional state powers and provide clear boundaries between state and federal jurisdiction, APPA argued.
The trade group said a new WOTUS rule “should recognize that clear boundaries are necessary to allow states to effectively regulate land and water use within their borders. States must have the ability to identify which waters are and are not subject to federal CWA regulation. Clear jurisdictional lines are critical to efficient administration of the Act and to meet the government’s obligation to provide fair notice to regulated entities, particularly considering the civil and criminal penalties imposed by the CWA. Without clarity, the definition has the potential to result in inconsistent application or enforcement.”