A National Association of Counties (NACo) policy brief (2019-02-25) urged counties to comment on the recently proposed “Waters of the US” (WOTUS) definition under the federal Clean Water Act (CWA). NACo urged counties to provide comments on how the proposed rule will affect county infrastructure, such as road ditches, flood control channels, bridge projects, stormwater drainage systems, and wastewater facilities. Comments are due by April 15.
A water way designated as a WOTUS is subject to federal oversight under CWA, including the need to secure permits before undertaking construction or rehabilitation projects affecting the water way. Citizens suits can also be brought to protect a WOTUS.
From the policy brief:
On February 14, the U.S. Environmental and Protection Agency (EPA) and the U.S. Army Corps of Engineers (Army Corps) officially released the Trump Administration’s proposed new “Waters of United States” (WOTUS) rule defining which bodies of water across the United States are subject to federal regulations under the Clean Water Act (CWA). This action represents the second step in the process taken by the EPA and Army Corps to review and replace the Obama Administration’s 2015 WOTUS rule. …
The new proposed definition would create six categories of regulated waters and 11 exemptions. The six categories of WOTUS include: traditional navigable waters; tributaries; certain ditches; certain lakes and ponds; impoundments; and adjacent wetlands. The proposed rule specifies that if water does not meet one of the six listed categories, it will not be considered a WOTUS and clarifies that certain other waters will also no longer be considered a WOTUS, such as ditches that are only wet during rainfall events, groundwater, stormwater control features, wastewater recycling infrastructure built in uplands, converted cropland and waste treatment systems.
While the proposed rule tries to draw a bright line between tributaries and ditches, there remains uncertainty about when a ditch may be jurisdictional. For example, even though tributaries are defined as “naturally occurring surface channels” and ditches are defined as an “artificial channel used to convey water,” there are some cases when ditches may be considered jurisdictional under the tributary definition. Case in point, many roadside and drainage ditches were built decades ago in natural stream systems would be jurisdictional if the ditch has year-round or seasonal flow. But, ditches that are only wet during rainfall events, are not jurisdictional under the proposed rule.
Under the proposed rule, the following types of county-owned infrastructure may be jurisdictional:
- Roadside ditches that have flow year-round (perennial flow)
- Roadside and other ditches with intermittent flow (i.e. seasonal) that are a relocated tributary, or are excavated in a tributary, or touch jurisdictional wetlands
- Roadside and other ditches that have a seasonal flow due to snowmelts and monsoons
- Stormwater systems and wastewater recycling infrastructure in low-lying areas
Furthermore, the proposed rule ponders how jurisdictional “intermittent” waters should be defined. But, the proposed rule stops short at proposing a specific duration (e.g. the number of days, weeks or even months) the feature would need to flow to be considered “intermittent.” Currently, intermittent means surface water flowing continuously during certain times of a typical year and more than in direct response to precipitation (e.g., seasonally when the groundwater table is elevated or melted snowpack). This lack of a definition could be problematic in some parts of the country due to different climates, topography, and other features.
Finally, the proposed rule contains several exemptions for stormwater features and wastewater recycling structures constructed in uplands and for waste treatment systems. While the waste treatment exemption is a continuation of a previous exemption, the proposed rule defines for the first time the parameters of a waste treatment system. The stormwater exemption is similar to provisions in the 2015 WOTUS rule and raise similar questions about when stormwater systems and/or green infrastructure are considered jurisdictional. These systems are regulated under the CWA Section 402 stormwater permit program which allows water to be treated before it is released to a WOTUS.
The policy brief also provided an overview of the ongoing legal challenges to the 2015 WOTUS rule. At the time, both NACo and MACo submitted comments expressing concern over the inclusion of road ditches and stormwater outflows as part of WOTUS. MACo requested clarifying language ensuring that such structures would be exempted under the rule while NACo called for the rule to be withdrawn and revised based on local government input.
The 2015 WOTUS rule is currently in effect in 22 states, including Maryland. In the other 28 states, the longstanding 1980s rule remains in effect.
Federal Register Revised WOTUS Definition (includes instructions on how to submit a comment)