Clean Water Act Guidance Should be Withdrawn, ACWA Says in Comment Letter

Draft guidance for the Clean Water Act issued earlier this year represents a vast expansion of federal jurisdiction over water bodies and could put recycled water projects in jeopardy, ACWA said in comments submitted July 22 to the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers.

Calling the draft guidance a “rule in disguise,” ACWA called on EPA to withdraw the guidance and begin a formal rulemaking process.  

The draft guidance, aimed at clarifying which waters are protected by the Clean Water Act and how federal agencies will implement recent Supreme Court decisions concerning CWA jurisdiction, introduces new definitions and regulatory requirements that should only be considered in the context of a formal rulemaking process, ACWA said. Such a rulemaking should be subject to consultation with other federal agencies and state and local governments.

“ACWA members are keenly interested in having predictability and certainty in determining if a water body is subject to jurisdiction of the Clean Water Act. However, the Draft Guidance does little to address this issue. Instead it introduces new concepts, definitions and tests that will vastly expand the universe of waters defined as waters of the U.S.,” the letter said.

“As proposed, the Draft Guidance puts recycled water projects in jeopardy, overlooks the uniqueness of arid states, and incorporates ditches into the jurisdiction of the CWA. In issuing this Draft Guidance, EPA is proposing a rule in disguise and has ignored congressional concerns.”

ACWA also noted that guidance could increase costs and make infrastructure projects more difficult and costly.

ACWA’s six-page letter is available below.

ACWA members are encouraged to submit their own comment letters by the July 31 deadline. Further information is available here.