National Association of Counties
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 House introduces bill to stop ‘Waters of the U.S.’ guidance

By Julie Ufner

A bipartisan bill was introduced in the House to prevent the Environmental Protection Agency and the Army Corp of Engineers from moving forward with the “waters of the U.S.” guidance. NACo supports this bill and asks that you contact your members of Congress to ask their support for H.R. 4965 and the Senate companion bill S. 2245.

This bill is in response to a proposed guidance on the Identifying Waters Protected by the Clean Water Act. Originally issued as a draft in April 2011, the guidance was sent in final form to the Office of Management and Budget (OMB) on Feb. 21, 2012. The final waters of the U.S. guidance is expected to be released soon.

According to the EPA and the Corps, the guidance is meant to clarify what waters fall under federal jurisdiction by modifying the waters of the U.S. definition in the Clean Water Act (CWA).

NACo, however, has expressed repeated concerns over the scope of the waters of the U.S. proposal — the guidance is significantly broader in scope than previous guidance documents on the subject. Previous documents narrowly referred to CWA Section 404 wetlands jurisdiction, in light of previous Solid Waste Agency of North Cook County and Rapanos U.S. Supreme Court decisions.

The guidance, on the other hand, states there is only one waters of the U.S. definition within CWA which would impact every CWA program beyond the 404 permit program.

H.R. 4965 was introduced by Reps. John Mica (R-Fla.), chairman, and Nick Rahall II (D-W.Va.), ranking member of the House Transportation and Infrastructure Committee; and Frank Lucas (R-Okla.), chairman, and Collin Peterson (D-Minn.), ranking member of the House Agricultural Committee. There are currently 37 sponsors on the bill.

County Implications

The waters of the U.S. proposal acknowledges “that decisions concerning whether or not a waterbody is subject to the CWA have consequences for states, tribal and local governments…” However, potential impacts have neither been addressed nor adequately studied.  Since there are a number of CWA programs that directly impact counties — such as the National Pollution Discharge Elimination System Program; Pesticides General Permits; Total Maximum Daily Load; andWater Quality Standards,  changing the definition of waters of the U.S. will affect counties.

While the guidance is technically non-binding, many counties believe based on previous experience, Corps staff will claim federal jurisdiction over county ditches using the 404 permit program, essentially using the guidance as a regulation.

County-owned Ditches

Under the draft guidance, a ditch is jurisdictional if it has a bed, bank and an ordinary high-water mark, and connects directly (or indirectly) to navigable or interstate waters, regardless of distance.

Many counties are required to obtain 404 permits for their roadside, flood and stormwater ditches. Section 404 permits can be cumbersome and costly to obtain. A number of counties report the process may take years and be extremely expensive.

In regards to maintenance activities, the EPA and the Corps have stressed continuation of their current exemption of maintenance of ditches.  However, while an exception exists on paper, it is very narrowly crafted.  In reality, a number of counties have been required to obtain maintenance-of-ditch 404 permits to cut down vegetation or trees in earthen ditches or clean out debris from manmade ditches.  Special conditions may also be attached to the permit for maintenance activities. One California county can only clean out an earthen floodwater ditch six months out of the year because of impacts to bird habitat.

If more ditches become jurisdictional under the guidance, the concern is the problems that exist now within the 404 permit program will only intensify, especially if the process is not streamlined nor accompanied by a Corps staff increase.  

Because of the broad implications for state and local governments, NACo opposes the waters of the U.S. guidance from moving forward. NACo would prefer the agencies to move forward with a transparent rule-making process, in order to address all concerns in the bill.

NACo’s policy states that local streets, gutters and human-made ditches must be excluded from the definition of waters of the United States.

NACo asks that counties contact their senators and ask them to co-sponsor or support H.R. 4965 and S. 2245.


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