National Association of Counties
Washington, D.C.

 'Waters of the U.S.' regulation released

By Julie Ufner

The U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps) have released their long-awaited 371-page prepublication draft regulation for Definition of Waters of the U.S. under the Clean Water Act. Once published in the Federal Register, there is a 90-day public comment period.

This proposal will impact county-owned and maintained infrastructure such as roadside ditches and flood-control channels. The draft regulation defines a number of key terms including tributary, other waters, neighboring, riparian area, floodplain and significant nexus. 

Bullet Draft regulation for Definition of Waters of the U.S. Under the Clean Water Act

Bullet A report released by the EPA and the Army Corps of Engineers - Economic Analysis of the Proposed Revised Definition of Waters of the United States

Some of the terms or definitions may be problematic for counties — for example, the term “floodplain” is not tied to the generally understood Federal Emergency Management Agency (FEMA) program that oversees the National Flood Insurance Program (NFIP) in floodplain areas. EPA and the Corps define floodplain as “an area bordering inland or coastal waters that was formed by sediment deposition from such water under present climatic conditions and is inundated during periods of moderate to high water flows.” 

Determination of whether a floodplain falls under the  jurisdiction of the proposed rule may be decided by the “best professional judgment and experience” of agency staff making the determinations.

Most significantly, it is noted that most ditches, including county-maintained roadside, floodwater and other ditches would be considered U.S. waters, unless they meet certain exemptions. 

Specifically on ditches, the draft regulation proposes a definition of “tributary,” which is defined as having a bed, bank and ordinary high-water mark and  contributes to flow, directly or indirectly, of a water of the U.S.  Tributaries can be natural and/or man-made, and include ditches (canals, channelized streams, piped, etc.). The flow may be ephemeral, intermittent or perennial, but the tributary must drain, or be part of a network of tributaries that drain into a water of the U.S. 

Under the proposed definition of a tributary, the upper limits of a tributary is established where the channel begins.  A natural or man-made break in a tributary, such as bridges, pipes, culverts, dams, underground streams, does not dissolve the ditches tributary status, even in the arid West even if the banks of the tributary disappear at times.  If the tributary has the bed, bank, ordinary high-water mark before the break, the ditch retains its jurisdictional status after the break.

The draft regulation excludes two types of ditches that might otherwise be considered jurisdictional: 1) ditches excavated and draining only in uplands and having less than perennial flow and 2) those ditches that do not contribute to flow, directly or indirectly, to a water of the U.S. Also excluded from the definition of tributary are rills, gullies and non-wetland swales.  However, these features may be considered “point sources” and thus regulated under the CWA’s Section 402 program.

NACo’s policy states that local streets, gutters, and human-made ditches should be excluded from the definition of “waters of the U.S.”

The draft Waters of the U.S. regulation stems from the 2001 Supreme Court decision, Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001). The court struck down the Corps’ use of the Migratory Bird Rule in determining federal jurisdiction. The Migratory Bird Rule stated that wherever a bird might land, that water was considered a “Water of the U.S.” Since the SWANCC decision, confusion has existed over what waters (and their tributaries) are considered to be under federal jurisdiction. According to the EPA and the Corps, the proposed regulation is intended to clarify jurisdictional waters.

The term “Waters of the U.S.” is a key phrase used within the Clean Water Act (CWA) to determine what waters are considered “navigable waters” and fall under federal CWA oversight as opposed to state oversight.  The federal responsibility for navigable waters rests in the U.S. Constitution since the federal government regulates interstate commerce.  This harkens back to the days where most of commerce activity was done by boat.  In recent years, the term “navigable” has been broadened to mean more than navigable-in-fact waters.

Any water not a “water of the U.S.” is generally not required to follow CWA requirements.

While the regulation is primarily geared to the Clean Water Act’s (CWA) Section 404, dredge and fill program, it may also impact a number of other CWA programs, since there is only one “waters of the U.S.” definition in the CWA. 

A report released by the EPA and Corps, Economic Analysis of the Proposed Revised Definition of Waters of the United States, looks at some of these other potential impacts, along with the estimated costs and benefits of the proposed rule. 

The report notes that “Readers should be cautious in examining these results in light of the many data and methodological limitation, as well as the inherent assumptions in each component of the analysis.”  CWA programs that could be impacted include the National Pollutant Discharge Elimination System (NPDES) Section 402 program, total maximum daily load (TMDL) and other water quality standards programs, state water quality certification process, or Spill Prevention, Control and Countermeasure (SPCC) programs.

NACo is in the process of analyzing this document and will be submitting comments.

How to Comment on Waters of U.S. Proposed Rule

Written comments to EPA and Corps are due 90 days after the regulation is published in the Federal Register (which should be soon).  Please share a copy of the submitted comments with NACo staff:

Submit your comments, identified by Docket ID No. EPA–HQ– OW–2011–0880, by one of the following methods:  

  • Federal eRulemaking Portal: Follow the instructions for submitting comments.
  • E-mail: Include EPA–HQ–OW–2011–0880 in the subject line of the message.
  • Mail: Send the original and three copies of your comments to: Water Docket, Environmental Protection Agency, Mail Code 2822T, 1200 Pennsylvania Avenue, NW, Washington, DC 20460, Attention: Docket ID No. EPA–HQ–OW–2011–0880.