A new Waters of the U.S. rule from the Environmental Protection Agency and the Army Corps of Engineers is overly broad and will be a burden to electric cooperatives’ efforts to shore up and expand their system infrastructure, NRECA said Tuesday.
“EPA’s final rule expands the reach of WOTUS and creates substantial regulatory uncertainty for electric co-ops,” said Louis Finkel, NRECA’s senior vice president of Government Relations. “It will further complicate and slow permitting for electric infrastructure projects, which are vital for ensuring energy affordability and reliability for American families and businesses.”
The latest rule takes on greater weight for co-ops as billions of dollars are released from the 2021 Infrastructure Investment and Jobs Act for building electric transmission, broadband internet networks and other energy projects.
The WOTUS rule has been amended over the past several administrations and heavily litigated. This revised rule will take effect this spring and includes a “dual test” approach that authorizes EPA and the Corps to determine, case-by-case, if certain waters and features are subject to Clean Water Act mandates.
The new rule preserves federal jurisdiction over multiple bodies of water, including traditional navigable waters used in commerce or affected by tides; territorial seas; interstate waters including streams, lakes or ponds, or wetlands that cross or form state boundaries; and impoundments. Tributaries, adjacent wetlands and what EPA calls “additional waters”—intrastate lakes and ponds, streams or wetlands—may also be regulated if they meet certain tests.
Importantly, the final rule retains an exclusion for “waste treatment systems,” but it removes a 2020 WOTUS definition of these systems that provided greater clarity, Finkel said.
For several years, NRECA has advocated for clearer WOTUS regulations that protect natural resources while allowing co-ops to build and maintain infrastructure.