The proposal also clarifies regulations of several waters that ongoing practice has considered generally non-jurisdictional, providing additional certainty.

  • Irrigated areas that would revert to upland if irrigation ceased.
  • Artificial lakes or ponds created on dry land and used exclusively for stock watering, irrigation, settling basins, or rice growing
  • Artificial reflecting or swimming pools created on dry land
  • Small ornamental waters created on dry land
  • Water-filled depressions created incidental to construction activity
  • Groundwater, including groundwater drained through sub-surface drainage systems
  • Gullies and rills and non-wetland swales

“The proposal would state these waters were not WUS, without the potential available under current practice of finding a particular one of these waters WUS on a case-by-case basis.  The proposal would put into regulation that these waters are not WUS and not regulated under the CWA, period,” said Downing.

The proposal also narrows jurisdiction over ditches compared to existing guidance and for the first time would exempt certain ditches by regulation.

Battle over “Waters of the United States,” begins with release of…

“Ditches excavated wholly in uplands, draining only uplands, and that have less than perennial flow,” and “ditches that do not contribute flow, either directly or through other waters, to a traditionally navigable water, interstate water, or territorial sea are exempt from regulation.”

Downing said two points are important:

“Waters listed as non-jurisdictional cannot become jurisdictional even if they have a significant nexus.

“Non-jurisdictional waters may serve as a hydrologic connection for purposes of determining adjacency or a significant nexus analysis.”

Stoner said the benefits of the rule changes will far outweigh the costs. Benefit estimates range from $388 million to $514 million annually. That includes reducing flooding, filtering pollution, providing wildlife habitat, supporting hunting and fishing, and recharging groundwater.

Cost estimates run from $162 million to $279 million per year for mitigating impacts to streams and wetlands. Also considered a cost is taking steps to reduce pollution to waterways.


Also of interest:

Water crisis in the twilight zone

Three states meet over water issues

Kansas agencies working on 50-year water plan