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No boats needed: New clean water bill would make gutters ‘waters of the U.S.’

By Julie Ufner
Associate Legislative Director

A flood of new regulations, preemption and unfunded mandates are in the works for state and local governments under a new proposal to revise the 1972 Clean Water Act (CWA).   On May 22, Rep. Jim Oberstar (D-Minn.), along with Rep. John Dingell (D-Mich.) and Vernon Ehlers (R-Mich.), introduced H.R. 2421, the Clean Water Restoration Act of 2007.

The bill proposes to eliminate the word “navigable” from the definition of “waters of the U.S.” within the Clean Water Act (CWA), essentially placing all bodies of water or “perceived” bodies of water under federal jurisdiction — even those waters traditionally under state authority.

This one seemingly small change has dramatic implications for states and counties. The need for CWA permits expands significantly as does the application of other federal laws and regulations such as Environmental Impact Statements, the National Environmental Policy Act and the Endangered Species Act.

The proponents of this legislation say it’s all about ensuring clean water by protecting isolated wetlands. But, in a nutshell, the bill would only create more paperwork for counties, and ensure more unfunded mandates and preemptions, without necessarily ensuring clean water.

Legal Analysis

The bill removes the word “navigable” from the definition of “waters of the U.S.” The language now reads:

“The term ‘waters of the United States’ means all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sand flats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundment of the foregoing, to the fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of Congress under the Constitution.”

There are several key terms and phrases highlighted above that will expand the Clean Water Act.

• Intrastate waters — Historically, states have been responsible for setting water quality standards in intrastate waters. What this language does, essentially, is preempt a state’s right to oversee its own waterways, while at the same time imposing significant new administrative requirements: States would be required to expand their current water quality designations to include all waters within their boundaries, set additional reporting and attainment standards, and because most states now oversee the National Pollutant Discharge Elimination System (NPDES) permitting authority, states would also need to issue many new NPDES permits for any point-source discharges to the expanded inventory of “waters” — and potentially devise regulatory programs for another key term “activities affecting these waters.”
• ”The effects on state nonpoint-source control programs are difficult to determine, but they could be equally dramatic, without a significant funding source to pay for the proposed changes. Many counties, in the role of regulator, have their own watershed/storm water management plans that would also need to be modified based on federal and state changes. Changes at the state level would impact comprehensive land use plans, floodplain regulations, building and/or special codes, watershed and storm water plans.
• Local governments, large and small, are also responsible for a number of public infrastructure projects that would be affected by the proposed changes. These include: roads, gutters and ditches; drainage channel maintenance; pesticide application, mosquito control and fire retardant sprays; sewers and wastewater disposal, including settling ponds; water supply, transfers and rights; solid waste disposal; county owned/operated airports; storm water detention infrastructure; erosion control; maintenance/construction of county-owned schools, nursing homes, hospitals, any municipal buildings; marinas, dams and reservoirs; parks, greenways and forestlands; cleanup/ rebuild after natural disasters; and economic development.

• Tributaries — The word tributary is very important, especially since the 2001 U.S. Supreme Court decision in Solid Waste Association of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers. Prior to 2001, ditches were never considered “jurisdictional,” however, since 2001, both the courts and the Army Corps of Engineers have classified ditches, including roadside ditches, as tributaries.
• Including — Courts and federal agencies generally do not consider use of the word “including” in a statute as limiting the meaning to the listed items. Instead, such wording is likely to be read to mean the listed types of waters are simply examples, rather than a self-contained list. Therefore, other potential sources of water, such as ditches, pipes, streets, gutters, manmade ponds, drainage features, desert washes and other features could be regulated, even though they are not specifically listed.
• Activities affecting these waters — The definition of “activities affecting these waters” does not exist in current law or regulations. This language could be interpreted broadly to allow the federal regulation of any and all activities that “affect” waters.
• Subject to the legislative power of Congress under the Constitution — This phrase expands the existing CWA authorities. Currently, CWA is tied to the Congress’ authority under the Commerce Clause, not to the Constitution. To subject the CWA to the provisions under the Constitution may open up other provisions in the Constitution for interpretation.

It’s important to note that the bill does include a so-called “savings clause,” which essentially keeps several current Clean Water Act statutory exemptions. Nevertheless, the clause fails to address NACo’s concerns with the legislation.

The savings clause does not exempt any waters or areas from the overarching definition of “waters of the United States” under H.R. 2421. It only exempts certain activities from being considered “discharges.” For example, maintenance of a ditch would not be considered a “discharge,” however the ditch itself would still be a jurisdictional water such that “all other activities” affecting the ditch would be regulated, such as building a road.

The savings clause also fails to continue current regulatory exemptions for converted crop land and waste treatment systems and limits the affected agencies’ ability to create future regulatory exemptions.

It’s not too difficult to understand the implications of removing “navigable” from the definition of waters of the U.S. Counties have already been struggling with

 federal definitions of wetlands or bodies of water. Take “ditches” for example. NACo members have voiced concern regarding officials at local Army Corps of Engineers offices deciding to regulate man-made ditches as jurisdictional waters under the CWA.

Ditches are pervasive in counties across the nation and, until recently, were never considered to be jurisdictional by the Corps. While some Corps offices regulate ditches, other offices have continued the existing policy of not regulating them. This expansive and inconsistent application of the law frustrates many counties’ ability to provide and conduct vital projects for the public.

For example, one Midwest county received Federal Highway Authority funding to replace two old county bridges. The Corps determined that because the project would impact 300 feet of a roadside ditch, the county would have to go through the individual permit process.

The county disagreed with the determination, but decided to acquiesce to the Corps rather than risk further delay and the withdrawal of federal funding. The cost associated with going through the Corps process required the county to significantly scale back its intended project in order to stay on time and budget. Ultimately, the project’s completion was still delayed by several months.

The delay that can result from regulating local drainage features is evidenced by another Midwestern county that wanted to conduct a storm water improvement project to address local flooding concerns. The project entailed adding a second structure to a concrete box culvert and replacing a corrugated metal culvert. These structures were deemed “jurisdictional” by the Corps because they had a “bank on each side” and had an “ordinary high-water mark.” Thus, the county was forced to go through the individual permit process.

Ultimately, no changes were recommended by the Corps to the project, and thus, no additional environmental protection was provided by going through the federal process.

While storm water projects are the most common ones that cause Corps scrutiny, one county in California reported trying to construct a wildlife crossing that required the removal of a standard concrete-lined v-ditch. The Corps not only took jurisdiction over the v-ditch, but also over a gutter that ran alongside the street and through the storm drains system.

Finally, the most frustrating thing for counties is when a Corps office cannot even make up its mind on whether a feature is jurisdictional.

Numerous counties, including some in Minnesota, Arizona and California, voiced strong frustration with local Corps offices changing their positions on whether a ditch was subject to their jurisdiction or not. For example, one county in California started a highway project more than 10 years ago and had received a determination at that time from the Corps that no jurisdictional waters were present.

Three years ago, the Corps staff involved changed their minds, and the issues have yet to be resolved, more than three years later. The project, according to a NACo member has “been severely impacted with mitigation requirements, delayed and subject to extensive damage from storm events.” He estimates that the losses associated with the Corps’ changed positions are in the millions.

(For more information, contact Julie Ufner at jufner@naco.org or 202/942-4269.)