WOTUS Rule Will Flood Cooperatives With More Regulation


Benson, AZ – The new WOTUS rule that threatens to increase federal jurisdiction over every day electric cooperative operations and increase expenses is closer than ever to becoming a reality.

The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (ACOE) have finalized the Clean Water Rule, which the agencies say will clearly define which rivers, streams and other waterways are Waters of the United States (WOTUS), and therefore are subject to the Clean Water Act (CWA).  Arizona’s Generation and Transmission Cooperatives (AzGTs) continues to review the rule; however, previous concerns persist about federal control over dry washes, or ephemeral streams, that cross the same land where cooperative infrastructure is built.

“The rule still appears to expand federal regulation to dry washes that only flow during exceptionally heavy rain events.  The agencies consider these washes tributaries to Waters of the United States, no matter their distance,” said Michelle Freeark, AzGTs Director of Safety and Environmental Services.  “If so, that greatly increases the requirement for permitting that cooperatives must satisfy for our normal operations.”

Activities ranging from constructing a substation to maintaining an unpaved road could be considered as having an impact on WOTUS.  As a result, this work would require a CWA permit, which can cost anywhere from a few thousand dollars to tens of thousands of dollars.  Such permitting adds expenses to the cooperative, and ultimately could increase costs for people at the end of the line who use our power. The permitting process would add not only cost to these necessary operations but also time.

Based on an internal analysis of Jurisdictional Delineations in Arizona in 2013 and 2014, the extent of federal jurisdiction over ephemeral washes in Arizona under the new rule could increase in the state by as much as 240 percent.  Whether EPA or the ACOE are prepared for such increased regulatory responsibility remains in question.  The changes could also require cooperatives to file additional plans with the federal government for a variety of regulatory programs under the CWA, from storm water discharges to spill prevention plans for operations that store oil containing products above a certain amount.

“Cooperatives already use best management practices, regardless of the amount of these types of materials in their operations,” Freeark said.  “Implementing federally required plans with specifications that are subject to audit is redundant and unnecessary.  It creates another cost for our members.”

The rule takes effect sixty days after it is entered into the federal register.  Both houses of Congress have bills that prohibit changes in CWA jurisdiction; however, the President has vowed to veto any bill that limits EPA and the ACOE’s CWA authority.