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NACo Action Alert: New "Waters of the U.S." Definition Released, Counties Urged to Comment

Posted Date: 
April 23, 2014
Julie Ufner, Associate Legislative Director, National Association of Counties

Counties are strongly encouraged to submit written comments on potential impacts of the proposed regulation to the Federal Register

On April 21, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) jointly released a new proposed rule — Definition of Waters of the U.S. Under the Clean Water Act — that would amend the definition of "waters of the U.S." and potentially expand the range of waters that fall under federal jurisdiction. The proposed rule, published in the Federal Register, is open for public comment for 90 days, until July 21, 2014.

To read NACo's analysis of the proposed "waters of the U.S." definition, including information on where to submit comments, click here. This document includes a policy brief and a comparison chart showing existing and proposed regulatory language and its potential impacts on counties.

Why "Waters of the U.S." Regulation Matters to Counties

The proposed "waters of the U.S." regulation from EPA and the Corps could have significant impact on counties across the country, 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.

EPA to Hold Local Government Stakeholder Conference Call: Friday, April 25

EPA has scheduled a Local Government Stakeholder Conference Call to explain the proposed regulation and to answer questions. The call is scheduled for Friday, April 25, 2014 from 1:00 p.m. – 2:30 p.m. EDT.

Call information: 1.866.299.3188

Passcode: 2029992299

Please RSVP to Darlene Leonard ( if you plan to participate on the call. Information about the proposed rule can be found at

For more information on this issue, contact Julie Ufner at 202.942.4269 or

Julie Ufner | | (202) 942-4269