NACo Considers EPA Proposed Clean Water Act Regs

As previously reported on Conduit Street, the United States Environmental Protection Agency (EPA) and Army Corps of Engineers have released proposed regulations that would change the definition of waters under the federal Clean Water Act.  An April 7 NACo County News article presented an initial analysis of the regulations and raised concerns about the effect of the regulations on county governments.  From the article:

This proposal will impact county-owned and maintained infrastructure such as roadside ditches and flood-control channels. The draft regulation defines a number of key terms including tributary, other waters, neighboring, riparian area, floodplain and significant nexus.

Some of the terms or definitions may be problematic for counties — for example, the term “floodplain” is not tied to the generally understood Federal Emergency Management Agency (FEMA) program that oversees the National Flood Insurance Program (NFIP) in floodplain areas. EPA and the Corps define floodplain as “an area bordering inland or coastal waters that was formed by sediment deposition from such water under present climatic conditions and is inundated during periods of moderate to high water flows.”

Determination of whether a floodplain falls under the  jurisdiction of the proposed rule may be decided by the “best professional judgment and experience” of agency staff making the determinations.

Most significantly, it is noted that most ditches, including county-maintained roadside, floodwater and other ditches would be considered U.S. waters, 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 flow may be ephemeral, intermittent or perennial, but the tributary must drain, or be part of a network of tributaries that drain into a water of the U.S.

The article reiterated NACo’s position that “local streets, gutters, and human-made ditches should be excluded from the definition of ‘waters of the U.S.'”  NACo is in the process of analyzing the regulations and will be submitting comments during the 90-day public comment period.  The article also explained how to submit public comments:

How to Comment on Waters of U.S. Proposed Rule
Written comments to EPA and Corps are due 90 days after the regulation is published in the Federal Register (which should be soon).  Please share a copy of the submitted comments with NACo staff:

Submit your comments, identified by Docket ID No. EPA–HQ– OW–2011–0880, by one of the following methods:

  • Federal eRulemaking Portal: Follow the instructions for submitting comments.
  • E-mail: Include EPA–HQ–OW–2011–0880 in the subject line of the message.
  • Mail: Send the original and three copies of your comments to: Water Docket, Environmental Protection Agency, Mail Code 2822T, 1200 Pennsylvania Avenue, NW, Washington, DC 20460, Attention: Docket ID No. EPA–HQ–OW–2011–0880.