News Feature | November 28, 2016

WOTUS Is 'Doomed' Under Trump, Experts Say

Sara Jerome

By Sara Jerome,

The future of the Obama administration’s top achievement for source water policy is not looking hopeful.

The waters of the U.S. rule (“WOTUS”) is an update to Clean Water Act regulations that the U.S. EPA says is necessary because Supreme Court decisions obscure jurisdictional questions under the law.

Even before staunch WOTUS opponent Donald Trump was elected, the rule was mired in difficulty. As Greenwire put it, WOTUS was on “life support.”

“Dozens of lawsuits and a nationwide stay halted U.S. EPA and the Army Corps of Engineers' plans to implement the new standards on the ground,” the report said.

But the election results mean the outlook for WOTUS is getting even worse. Vermont Law School professor Pat Parenteau said, per Greenwire: "I think this rule is ultimately doomed."

What does this mean for the daily operations of water and wastewater utility managers?

It helps to look at what the implications of WOTUS would have been. The American Water Works Association (AWWA) released a document summarizing how the WOTUS update may impact water utilities. The document notes that Clean Water Act implementation “has significant implications for the day-to-day operations and capital infrastructure planning necessary to drinking water, wastewater, stormwater, recycled water, and irrigation water utilities.”

Two ways WOTUS could have impacted the water and wastewater industries include effects on permitting and construction. Here is an excerpt from the AWWA report:

  • National Pollutant Discharge Elimination System (NPDES) permit issues: Outfall limits are not likely to be affected by a change in the definition of WOTUS, though the location of compliance points could be moved upstream if the limits of jurisdiction move upstream. Previously, discharges (for example, from well flushing) to ephemeral streams located in uplands only required a permit if case-by-case analysis defined the receiving channel as WOTUS. Now a permit will be required categorically if the receiving channel has a bed, a bank, and an ordinary high-water mark.
  • Construction issues: A significant aspect of the proposed definition is increased burden during facility expansion and line installation. It appears that there will be more instances in which facility construction will require a permit and that more projects will require site-specific permits. The increased burden will likely take the form of increased permitting costs, increased mitigation costs, and longer wait times for required permits.

The EPA framed the rule as beneficial to the everyday operations of water utility managers.

“When utilities can withdraw cleaner water, it means less treatment and cleaner drinking water at your tap. The Clean Water Rule provides clear protection for the streams that are used for drinking water by about 117 million people — that’s one in three Americans. Now those streams are clearly protected by the Clean Water Rule,” the EPA says in its materials describing the rule.

Opponents, including congressional Republicans and the agriculture industry, argue the rule constitutes government overreach. An influential U.S. senator has argued that the rule poses a threat to water utilities.

“It’s time to come together to protect farmers, ranchers, water utilities, local governments, and contractors by giving them the clarity and certainty they deserve and stopping EPA and the Corps from eroding traditional exemptions,” said Senate Environment and Public Works Chairman Jim Inhofe, Republican from Oklahoma, in a statement.