NACo Highlights Ambiguities in New Federal “Waters of the US” Rule

A June 3, 2015, National Association of Counties (NACo) email notice summarized NACo’s ongoing concerns regarding whether county-owned and maintained ditches are now subject to the federal Clean Water Act under the United States Environmental Protection Agency (EPA) and Army Corps of Engineers’ recently released final rule changing the definition of “Waters of the United States.” As previously reported on Conduit Street, EPA and the United released the final rule on May 27.

In the email notice, NACo noted its support of the Clean Water Act but cited ambiguities on whether the ditches would now be subject to federal jurisidiction and permitting requirements:

NACo Executive Director Matthew Chase said, “Counties support clean water and work every day to protect water resources.  Even non-federal waters are protected by state and local regulations — sometimes even more strictly than federal rules.  This is why it is so disconcerting that the federal agencies paid little heed to vast amounts of expertise from state and local leaders on the ground.
“From day one, this has been an issue of practicality — not politics — for us.  As co-regulators of Clean Water Act provisions, counties are not just another stakeholder in this discussion.  We will continue to work with county experts — county engineers, public works directors, stormwater managers and county legal staff — to analyze the final rule and its potential impacts on counties.  NACo will also work with the federal agencies and Congress to address outstanding questions.” …
While the final rule attempts to exempt certain ditches, many county owned ditches may still fall under federal authority.
According to the final rule, several types of ditches are now exempt:
  • Ditches with ephemeral flow that are not a relocated tributary or excavated in a tributary
  • Ditches with intermittent flow that are not a relocated tributary, excavated in a tributary, or drain wetlands
  • Ditches that do not flow, either directly or through another water, into traditional navigable and interstate waters, and territorial seas.
While this may seem to address county concerns about roadside and other types of ditches, a closer reading reveals greater ambiguity than clarification. Why?
Under the final rule, the following ditches are jurisdictional:
  • Roadside and other ditches that have flow year-round (perennial flow) — Page 98
  • Roadside and other ditches with intermittent flow (not continuous, irregular) that are a relocated tributary, or are excavated in a tributary, or drain wetlands — Page 98
  • Ditches, regardless of flow, that are excavated in or relocate a tributary — Page 98
The final rule also newly defines the term “tributary,” and in doing so states that “a tributary can be a natural, man-altered or man-made water and includes waters such as rivers, streams, canals, and ditches.” Clean Water Rule: Definition of Waters of the United States” at 40 CRF 230.3, Page 6.
Bottom line: Since ditches can now be classified as tributaries, and the new definition of tributaries includes ditches — what is truly exempt?This one example demonstrates that the final rule fails to achieve our shared goal of providing the clarity needed at the ground level for counties to effectively implement this rule and protect our valuable water resources.