As previously reported on Conduit Street, the United States Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) have released a proposed rule clarifying how the Clean Water Act applies to streams and wetlands.  A March 28 National Association of Counties (NACo) bulletin provided some further information and announced that NACo would analyze the proposal and submit comments would on behalf of county governments nationwide.

The proposed regulation defines a number of key terms including tributary, other waters, neighboring, riparian area, floodplain, and significant nexus.  Most significantly, it is noted that most ditches, including county-maintained roadside, floodwater and other ditches are under jurisdiction, unless they meet certain exemptions.  …

Specifically on ditches, the draft regulation proposes a definition of “tributary” which is defined as having a bed, bank and ordinary high water mark and contributes to flow, directly or indirectly, of a water of the U.S.  Tributaries can be natural and/or man-made, and include ditches (canals, channelized streams, piped, etc.).  …

The draft regulation excludes two types of ditches that might otherwise be considered jurisdictional: ditches excavated and draining only in uplands and having less than perennial flow and those ditches that do not contribute to flow, directly or indirectly, to a water of the U.S.  Also excluded from the definition of tributary include rills, gullies and non-wetland swales.  However, these features may be considered “point sources” and thus regulated under the CWA’s Section 402 program.

NACo will continue to study regulation for its potential impacts on counties and provide additional analysis.  NACo’s policy states that local streets, gutters, and man-made ditches should be excluded from the definition of “waters of the U.S.”