If you listen to some of the statements made by the authors of this bill, you might be tempted to think that it wouldn’t have that big of an impact on how water resources (including our urban watersheds) are regulated in the U.S. However, the language chosen for this bill appears to potentially significantly broaden the scope of federal regulation.
At issue are measures in the bill that revise the definition of ‘waters of the United States.’ The revised definition strikes the term "navigable" and includes "all interstate and intrastate waters." This would appear to open many waters that have not traditionally been subject to Section 404 of the Clean Water Act, such as agricultural stock ponds and roadside drainage ditches originally constructed in uplands.
If the proposed definition were adopted, there could be significant impacts to all manner of projects. Here’s a real-life doomsday scenario... imagine a 20-mile road expansion project, where borrow ditches constructed 60 years ago in uplands, that because of steady road runoff and lack of maintenance, are deemed ‘jurisdictional.’ The costs to permit and mitigate filling these ditches (which would probably extend down both sides of the roadway for the entire extent of the project area) could be staggering.
Few reasonable people think that water quality shouldn’t be regulated. However, the proposed definition included in this legislation should be considered in light of its potential economic impact. Perhaps a clearer, more restrictive definition is warranted – one that exempts waters that are not connected to what have traditionally been thought of as waters of the U.S. Of course this would take us right back near the definition of waters that could be inferred from the joint guidance recently issued by the Corps and EPA. It’s funny how logical that guidance seems now.
If you’d like to read the proposed legislation, click here.
posted by RANDY ALEXANDER
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