EPA proposing new definition of “waters” subject to Clean Water Act

May 2, 2014

EPA

By Larry Land

On April 21 the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) jointly proposed a new rule that would amend the definition of “waters of the U.S.” that would be subject to the federal Clean Water Act.  The proposed rule, which can be reviewed by clicking here, has been published in the Federal Register and it is open for public comment until July 21, 2014.

The National Association of Counties (NACo) has developed an analysis of the proposed rule, which can be reviewed by clicking here.  NACo’s analysis includes a policy brief and a comparison chart showing existing and proposed regulatory language and its potential impacts on counties.

According to NACo, the proposed “waters of the U.S.” regulation from EPA and the Corps could have significant impact on counties in the following ways:

  • Seeks to define waters under federal jurisdiction: The proposed rule would modify existing regulations, which have been in place for over 25 years, regarding which waters fall under federal jurisdiction through the Clean Water Act (CWA). The proposed modification aims to clarify issues raised in recent Supreme Court decisions that have created uncertainty over the scope of CWA jurisdiction and focuses on the interconnectivity of waters when determining which waters fall under federal jurisdiction. Because the proposed rule could expand the scope of CWA jurisdiction, counties could face significant impacts as more waters become federally protected and subject to new rules or standards.
  • Potentially increases the number of county-owned ditches under federal jurisdiction: The proposed rule would define ditches as “waters of the U.S.” if they meet certain conditions. This means that more county-owned ditches would likely fall under federal oversight. In recent years, Section 404 permits have been required for ditch maintenance activities such as cleaning out vegetation and debris. Once a ditch is under federal jurisdiction, the Section 404 permit process can be extremely cumbersome, time-consuming and expensive, leaving counties vulnerable to citizen suits if the federal permit process is not streamlined.
  • Applies to all Clean Water Act programs, not just Section 404 permits: The proposed rule would apply not just to Section 404 permits, but is also relevant to other Clean Water Act programs, including stormwater, water reuse and green infrastructure. Such programs may become subject to increasingly complex and costly federal regulatory requirements under the proposed rule.

(Source: National Association of Counties)

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