On behalf of its member states, NEIWPCC recently submitted comments to the Oceans, Wetlands and Communities Division, Office of Water (4504-T), U.S. Environmental Protection Agency (EPA), concerning a proposed rule by the EPA and the U.S. Department of the Army Corps of Engineers’ (USACE) to revise the definition of “Waters of the United States” (WOTUS) under the federal Clean Water Act (CWA).
The WOTUS rule identifies which waters fall under federal protection under the CWA, including rivers, streams, wetlands, and other waterbodies that influence interstate commerce or downstream navigable waters. It provides a framework for consistent regulation, permitting, and protection of water quality across states. Clear federal guidance ensures that these protections are applied consistently and effectively, reducing uncertainty for states, local governments, and regulated entities.
In a letter sent in January, NEIWPCC wrote that the new proposed definition could constitute a potential retreat from federal protection of the nation’s water resources, including its wetlands. As state and federal programs share the goal of restoring and protecting the integrity of water resources, agencies are increasingly using watershed-based approaches. These methods recognize the network of surface waters and associated groundwaters as integrally tied to the protection of other waters, especially those that are downstream. NEIWPCC stresses that the protection and restoration strategies employed at both the federal and state level should reflect this understanding to the furthest extent possible.
However, the suggested changes would reduce federal protection from portions of the waters within a watershed. NEIWPCC encouraged the use of peer-reviewed scientific studies and fundamental hydrologic principles as critical sources in determining which waters to regulate.
In addition, NEIWPCC member states are concerned about the impacts on existing programs which would result from significant changes in federal jurisdiction. Federal CWA mandates to states are often instrumental in insuring state water resource programs are sustained and enhanced.
NEIWPCC stated that long-term, reduced protections of wetlands and waters can result in increased risk to infrastructure, resulting in adverse effects to commerce and human safety. And, removing the protection and consistency of the WOTUS rule for regulating waters that flow across state boundaries would likely result in significant legal battles between neighboring states with differing designated uses and water quality standards.
In conclusion, NEIWPCC recommended that EPA and USACE clarify in the final rule how “relatively permanent” interstate waters are to be identified and regulated under the proposed framework, and that the rule provides sufficient guidance to prevent inconsistent state implementation for waters that physically cross or form state boundaries.
In addition to the January letter, NEIWPCC submitted comments to the Office of Water in February regarding another proposed rule, “Updating the Water Quality Certification Regulations,” Clean Water Act (CWA) Section 401.
NEIWPCC’s position is that the rule departs from the objective of the CWA “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters” (Section 101(a)); and limits the states’ authority and ability to perform their responsibilities as required by the law. The states’ Section 401 programs would no longer be effective in assessing the water quality impacts of federally permitted projects, and ensure they are approved, conditioned or denied properly to protect the waters.
Further, NEIWPCC wrote that the proposed rule raises uncertainty as to how the law would be implemented, creating ambiguity and inefficiency. In contrast, the current process prevents, reduces, and eliminates water pollution through authorizing state 401 certifications and conditions, and upholding the integrity of their water quality standards.
NEIWPCC urged the agency to abandon the proposed rule and focus limited federal resources on meaningful cooperation with the states to implement the law.