Home\Latest News\Final “Waters of the United States” Rule Retains Exemption for Water Recycling

Final “Waters of the United States” Rule Retains Exemption for Water Recycling

Date: January 23, 2020

The U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers released a pre-publication version of the Administration’s revised definition of “Waters of the United States” (WOTUS). Under the Obama Administration, EPA and the Army Corps issued a major rulemaking to define WOTUS and clarify the regulatory scope of the Clean Water Act. The WateReuse Association was successful at that time in securing important regulatory exemptions for water recycling systems that were not discharging into jurisdictional waters.

In February of 2019, the Trump Administration proposed a redefinition of WOTUS, which limited the jurisdictional scope of the rule relative to the previous administration’s version. The WateReuse Association submitted comments on the February 2019 proposed redefinition, and urged the Administration to retain exemptions for water recycling structures. We also asked that the rule not limit the exemption to upland applications of water recycling.

The final rule adopts our recommendation to include a jurisdictional exemption for water recycling, including groundwater recharge projects. Specifically, the rule defines the following as non-jurisdictional: “groundwater recharge, water reuse, and wastewater recycling structures constructed or excavated in upland or in non-jurisdictional waters.” While WateReuse opposed limiting the water recycling exemption to upland applications, we believe most reuse projects will qualify as non-jurisdictional regardless. Importantly, the rule also excludes groundwater and waste treatment systems from the definition of WOTUS.

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