Senate Committee Discusses Clarifying Water Rule

On June 12, the Senate Committee on Environment and Public Works held a hearing to discuss revising the Clean Water Act (CWA) to clarify which waterways the legislation protects. Earlier this year, the Trump Administration released its revised definition for the “Waters of the United States” (WOTUS). Under that revised definition, wetland without surface connections to waterways, as well as streams that only flow after rainfall, would lose federal protections. Democrats on the Committee expressed concern that the revised definition would leave various wetlands and waterways without protection of any kinds in certain states, where water protection laws vary.
Various states in the country have laws on the books that prevent state regulators from instituting rules that are “more stringent” than those of the federal government. The concern is that the revised definition would remove federal protections for various waterways, and state laws would thus prevent the state from enacting regulations, as doing so would be “more stringent” than the federal standard. During the hearing, there was confusion about whether states would be allowed to do so, with one witness erroneously stating multiple times during the hearing that states could still enforce CWA for waters that are not included in the definition of WOTUS.
Members of both parties of the Committee agreed that now is the time for Congress to step in and play a more active role in defining the phrase. This approach is in agreement with comments submitted by APWA on the new WOTUS definition.
APWA’s comments show appreciation for the clarity the revised definition provides in terms of ditches and municipal separate storm sewer systems (MS4’s), however APWA has serious concerns regarding the revised definition and assumptions made in the proposed rule. In three key areas, the new proposed rule could do serious harm to public works professionals and programs: 1) Continued permitting uncertainty under the new proposed rule; 2) Assumptions regarding cooperative federalism; and 3) Additional costs for water providers and water customers.
You may read APWA’s comments here.