The Environmental Protection Agency and the U.S.Army Corps of Engineers have submitted to the Administration a draft Clean Water Protection Guidance document. The 90-day review period was to expire on March 11, 2011. A copy of the document is available here: December 2010 Clean Water Protection Guidance.

This document is an effort by those two agencies to clarify what waterbodies will be found to be jurisdictional under the Clean Water Act. The guidance adopts the “significant nexus” interpretation stated in Justice Kennedy’s concurring opinion in the United States Supreme Court decision of Rapanos v. United States, 547 U.S. 715 (2006).

The good news is that the guidance conclusively finds that swimming pools, reflecting ponds, ornamental waters, upland irrigation areas that would dry out absent the irrigation, and holes that fill with water during construction activities are not jurisdictional. In addition, some other waters may not fall under the jurisdiction of the Clean Water Act, including “Artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing.”

Most interesting to me is the proposed treatment of ditches. Some states, including Iowa, have extensive drainage ditch networks that cover the state. There has been a longstanding debate regarding the question of whether those ditches can be regulated under the Clean Water Act. The Iowa Department of Natural Resources has traditionally treated these ditches as “waters of the state” for regulatory purposes. However, the guidance proposes to distance Section 404 of the Clean Water Act from many ditches. The document starts with this statement on page 16:

“In addition, ditches (including roadside ditches) excavated wholly in and draining only uplands and that do not carry relatively permanent flow of water are generally not waters of the United States because they are not tributaries or they do not have a significant nexus to downstream traditional navigable waters or interstate waters.”

This statement goes on to set up the following criteria to determine when a ditch may nevertheless fall under U.S. jurisdiction:

“To clarify, only certain types of non-tidal ditches will be considered tributaries for the purposes of this guidance (tidal ditches are, by definition, waters of the U.S.). For a non-tidal ditch to be considered a tributary, it must first have a bed and bank, an ordinary high water mark, and connect directly or indirectly (through other tributaries or conveyances) to a traditional navigable water or interstate water. If these requirements are satisfied, ditches are considered tributaries for the purposes of this guidance if they are:

– natural streams that have been altered (e.g., channelized, straightened or
relocated);
– ditches or portions of ditches that have been excavated in waters of the U.S.,
including wetlands;
– ditches that have relatively permanent flowing or standing water; or
– ditches that connect two or more jurisdictional waters of the U.S.

If a ditch is considered a tributary, it will be evaluated in the same manner as other tributaries . . . .”

See, pages 16-17. While the guidance document does not exempt all roadside ditches, it is clear that some ditches might actually be exempt under the guidance document. This may provide some much-needed clarity for developers seeking permission to install at-grade entrances to new businesses. The information that would be needed would be some background research as to whether the ditch replaced an existing stream and whether it has permanent or standing water.

The bad news is two-fold. First, the guidance aggressively expands jurisdiction over waters that “have a significant nexus if they alone or in combination with other similarly situated waters in the same watershed have an effect on the chemical, physical, or biological integrity of traditional navigable waters or interstate waters that is more than ‘speculative or insubstantial.'” In addition, the guidance appears to use conclusory and circular reasoning to go “upstream” from navigable waters to include almost anything that could be deemed to drain into a navigable water. Second, the guidance begs the question of why the government is doing this through guidance instead of rulemaking. Perhaps, as some have noted, the government wants to avoid “final agency action” which can be appealed, which is what would happen if it issued regulations. As the recent National Mining case suggests, this attempt to circumvent rulemaking may not be successful.