As previously reported on Conduit Street, the National Association of Counties (NACo) was reviewing potential county concerns about a proposed rule change to the federal Clean Water Act by the United States Environmental Protection Agency (EPA) and the Army Corps of Engineers.  NACo has now issued a call to action for county governments, urging them to submit written comments on potential impacts to the Federal Register.  NACo also provides information about an EPA conference call that will be held on April 25 to explain the regulations.  From NACo’s press release:

On April 21, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) jointly released a new proposed rule — Definition of Waters of the U.S. Under the Clean Water Act — that would amend the definition of “waters of the U.S.” and potentially expand the range of waters that fall under federal jurisdiction. The proposed rule, published in the Federal Register, is open for public comment for 90 days, until July 21, 2014. …

Why “Waters of the U.S.” Regulation Matters to Counties

The proposed “waters of the U.S.” regulation from EPA and the Corps could have significant impact on counties across the country, in the following ways:

• Seeks to define waters under federal jurisdiction: The proposed rule would modify existing regulations, which have been in place for over 25 years, regarding which waters fall under federal jurisdiction through the Clean Water Act (CWA). The proposed modification aims to clarify issues raised in recent Supreme Court decisions that have created uncertainty over the scope of CWA jurisdiction and focuses on the interconnectivity of waters when determining which waters fall under federal jurisdiction. Because the proposed rule could expand the scope of CWA jurisdiction, counties could face significant impacts as more waters become federally protected and subject to new rules or standards.
• Potentially increases the number of county-owned ditches under federal jurisdiction: The proposed rule would define ditches as “waters of the U.S.” if they meet certain conditions. This means that more county-owned ditches would likely fall under federal oversight. In recent years, Section 404 permits have been required for ditch maintenance activities such as cleaning out vegetation and debris. Once a ditch is under federal jurisdiction, the Section 404 permit process can be extremely cumbersome, time-consuming and expensive, leaving counties vulnerable to citizen suits if the federal permit process is not streamlined.
• Applies to all Clean Water Act programs, not just Section 404 permits: The proposed rule would apply not just to Section 404 permits, but is also relevant to other Clean Water Act programs, including stormwater, water reuse and green infrastructure. Such programs may become subject to increasingly complex and costly federal regulatory requirements under the proposed rule.

NACo Analysis of Regulations

Directions on Submitting Comments

In anticipation of potentially submitting its own comments, MACo is seeking input on the impact of the proposed rule would have on Maryland counties.  Please contact Les Knapp at 410.269.0043 or lesknapp@mdcounties.org if you wish to submit feedback or have further questions.