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WOTUS Definition Fails to Include Exemptions for Water Recycling and Stormwater Features

Date: January 09, 2023

The U.S. Environmental Protection Agency (U.S. EPA) and Army Corps of Engineers (Army Corps) released the pre-publication version of the final rule defining Waters of the United States (WOTUS) at the end of 2022. The U.S. EPA stated that the final rule restores essential water protections in place prior to 2015 under the Clean Water Act for traditional navigable waters, the territorial seas, interstate waters, as well as upstream water resources that significantly affect those waters.  

Following the proposed definition in January 2022, WateReuse provided comments urging the U.S. EPA and Army Corps to reincorporate an exclusion for water recycling and reuse facilities and infrastructure, such as percolation, detention, retention, storage and recharge basins, and conveyance features into the definition of Waters of the United States, as was adopted in the 2019 rulemaking. WateReuse further urged the agencies to reincorporate an exclusion for stormwater control features constructed to convey, treat, or store stormwater. Neither the exclusion for water recycling and reuse facilities nor the exclusion for stormwater control features was incorporated into the final rule.  

The final rule does include a longstanding exclusion for waste treatment systems, including treatment ponds or lagoons, designed to meet the Clean Water Act. This exclusion covers waste treatment systems employing water recycling and reuse features such as percolation, detention, retention, storage and charge basins, and conveyance features if designed to meet the Clean Water Act. The rule states that for features not excluded, their jurisdiction will be assessed on a case-specific basis. This case-by-case approach may apply, for example, when assessing recycling facilities which are part of systems designed to meet the Safe Drinking Water Act or state groundwater requirements. For stormwater control features, the preamble of the rule notes that certain features that convey stormwater may be excluded as ditches under the rule. Once the final rule goes into effect, WateReuse will monitor its implementation to ensure that water reuse facilities are not adversely impacted. 

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