Regulated parties and stakeholders assert that the rule’s definition of “tributary”  is broad enough to encompass Western water supply and irrigation ditches. The final rule states that “ditches are one important example of constructed features that in many instances can meet the definition of tributary.”

Opponents of the rule state that the regulation means many water supply structures that are essential to beneficial water use in the West will be jurisdictional and subject to permitting requirements.  Opponents believe the regulation of these ditches represents a flawed understanding of the purpose and function of Western water supply ditches, which are created to drain water away from waters of the United States—not to direct water into them.  Water supply ditches are necessary infrastructure to divert water so that it can be put to beneficial use in accordance with prior appropriation doctrine followed by Western states.  These water supply ditches also include tail ditches, which are legally required by many states to ensure the return of unused water to source streams.  For more information, contact Phillip Hoover.