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Navigating the Waters of the United States

April 15, 2015   By Jay Hudson in Energy Matters

In order to determine what constitutes "jurisdictional" bodies of water, the U.S. Army Corps of Engineers actually has a definition of "Waters of the U.S." This definition began with the Rivers and Harbors Act of 1899 as "navigable waters, or tributaries thereof" when the Corps was assigned the responsibility of regulating crossings and maintaining waterways typically for transportation and commerce. Dredging the Charleston Harbor channel is a local example. 

Many years ago, during an update to the Clean Water Act, the Corps of Engineers was given responsibility to regulate wetlands, and the definition of jurisdictional "Waters of the U.S." took on a much more important meaning. Over the years, through various legal decisions, this definition narrowed to include those water bodies and features that were connected to a flowing water body, like a stream or lake. Swampy areas that were not directly connected were considered "isolated wetlands" and were excluded from regulation. This exclusion has caused some controversy in recent years as various agencies, such as the U.S. Fish & Wildlife Service, sought to impose regulations on these non-jurisdictional wetlands.

Just when we thought we knew which waters were jurisdictional and which weren't, the Environmental Protection Agency recently conducted a large study to redefine what jurisdictional "Waters of the U.S." are, and EPA is using this study to issue a new rule to redefine "Waters of the U.S." One major problem with this new definition is many areas that were clearly not regulated before will now be regulated because they connect to or are adjacent to clearly defined waters likes streams and rivers. 

One area of major concern to stakeholders is ditches, in that the new rule could be interpreted to include such areas as roadside ditches — even those that stay dry most of the time. This proposal casts a very wide net on what areas would be regulated, which would greatly impact construction projects for things like substations or transmission lines for electric utilities. 

In a February Senate hearing the EPA said, "The proposed rule also would exclude ditches that are constructed on dry lands, drain only dry lands, and do not have perennial flow," implying that all others would be included. 

Has the EPA ever been to the coastal plain of the Southeastern seaboard? Do they know where our local ditches flow? They flow to rivers, streams, and the ocean. Therefore, by the EPA's logic, all roadside ditches in the lower half of South Carolina would now be jurisdictional "Waters of the U.S." Would this rule then require a permit for anyone to move, re-route, or cross a ditch? 

The EPA says they could issue this rule as soon as this month, but I hope a more sensible rule will be issued. Otherwise, the cost of doing any type of construction in South Carolina could go up, and the consumer would be footing the bill.