MACo submitted comments on November 3 to the United States Environmental Protection Agency (EPA) regarding the EPA and United States Army Corps of Engineers’ proposed rule that would alter the definition of “waters of the United States” (waters of the US) under the federal Clean Water Act (CWA). The comments reflect concerns that the definition would be expanded to include: (1) county maintained road and drainage ditches; and (2) stormwater management structures, including environmental site design (ESD) structures such as rain gardens and vegetated swales. Inclusion under the definition could subject those structures to federal permitting requirements and enhanced water quality standards, creating greater costs and uncertainty for counties already struggling to meet Total Maximum Daily Load (TMDL) water pollution reductions. It could also encourage additional litigation over county municipal separate storm sewer system (MS4) permits. MACo requested that ditches and stormwater structures not already subject to the CWA be explicitly excluded from the proposed definition From MACo’s comments:
If these ditches and channels, which counties are legally responsible for maintaining, were to fall under the CWA, counties could be forced to go through the onerous and time-consuming Section 404 permit process, as well as other programmatic requirements of the CWA. This could also increase county liability exposure and limit a county’s ability to respond to a valid public safety concern. …
The proposed definition could expand the scope of Section 402 municipal separate storm sewer system (MS4) permits and Section 303 Water Quality Standards programs. Expansion of these programs will place additional stress and uncertainty on county TMDL and clean water efforts, particularly for stormwater and environmental site design (ESD) structures. …
MACo foresees further litigation questioning both the scope of the MS4 permit and its traditional “maximum extent practicable” implementation standard if the proposed definition is adopted. …
As previously noted, MACo recognizes both the need for clean water and the need for clarity in the “waters of the US” definition. However, based on the concerns enumerated in these comments, MACo requests that local government road and drainage ditches not already subject to CWA requirements, including stormwater and ESD structures, be explicitly excluded from the proposed “waters of the US” definition.
MACo Comments on Waters of the US
Besides MACo, several Maryland counties have also submitted comments to the EPA and the National Association of Counties (NACo) is expected to submit comments shortly. Comments may be submitted to EPA through November 14.
EPA Questions and Answers About Proposed Waters of the US Definition
