Galbraith, Ed, Barr Engineering, US EPA Draft Rulemaking on Waters of the US, at Missouri Water...

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US EPA Draft Rulemaking on Waters of the U.S.September 4, 2014

Ed GalbraithBarr Engineering

What is a WOTUS under the draft rulemaking

• (1) Waters used in commerce • (2) Interstate waters• (3) Territorial seas

Disclaimer: The terms used in this presentation are to meant to convey the concepts of the draft rule in a general way and may differ from the literal rule language. Consult the draft rule for the precise language.

What is a WOTUS

• (4) Impoundments of waters • (5) Tributaries of waters• (6) Adjacent waters • (7) Waters having a significant nexus

What is not a WOTUS

• (1) Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act.

What is not a WOTUS

• (2) Prior converted cropland.

What is not a WOTUS

• (3) Ditches that are excavated wholly in uplands, drain only uplands, and have less than perennial flow.

What is not a WOTUS

• (4) Ditches that do not contribute flow, either directly or through another water, to a water (of the U.S.)

What is not a WOTUS

• (5) The following features–Artificially irrigated areas that would revert

to upland;

What is not a WOTUS

• (5) The following features–Artificial lakes or ponds in uplands used in

farming

What is not a WOTUS

• (5) The following features–Reflecting pools or swimming pools created

in dry land;

What is not a WOTUS

• (5) The following features–Construction voids;

What is not a WOTUS

• (5) The following features–Groundwater

What is not a WOTUS

• (5) The following features–Gullies and rills and non-wetland swales.

Tributaries - The Big Questions

Does this rule go beyond current federal jurisdictional reach?

Answer…Yes.

Answer…Yes. So….why does EPA say it doesn’t?

The draft rule is very similar to the 2007 Post-Rapanos guidance used by the Corps.

When it comes to Section 404 (dredge and fill), the Corps exerts its reach quite far into the watershed - to the end of the tributary.

When it comes to Section 404 (dredge and fill), the Corps exerts its reach quite far into the watershed - to the end of the tributary. But…Its not on a map, It hasn’t been a WQS issue in most states!

When it comes to water quality (standards, criteria permitting, antidgradation and impairment)-

This is a Big Change.

Most states do not apply presumed uses (aquatic life, recreation) this extent or even close.

EPA/Corps of Engineers Waters of the U.S.

SubjectChannel

Perennial WaterPipe and GateSystem

Aquatic life and recreational uses

Lower criteria (chronic)

Stormwater limits based on chronic

criteria

Chronic WET test

Have you checked for mussels?

Monitoring

Impairment

Load Allocation

Wasteload Allocation

404/401 Permit

Antidegradation

Definitions

• (1) Adjacent: The term adjacent means bordering, contiguous or neighboring. Waters, including wetlands, separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like are “adjacent waters.”

Definitions

• (2) Neighboring: The term neighboring, includes waters located within the riparian area or floodplain of a water [of the US] or waters with a shallow subsurface hydrologic connection or confined surface hydrologic connection to such a jurisdictional water.

Definitions

• (3) Riparian area: The term riparian area means an area bordering a water where surface or subsurface hydrology directly influence the ecological processes and plant and animal community structure in that area. Riparian areas are transitional areas between aquatic and terrestrial ecosystems that influence the exchange of energy and materials between those ecosystems.

Definitions

• (4) Floodplain: The term floodplain means an area bordering inland or coastal waters that was formed by sediment deposition from such water under present climatic conditions and is inundated during periods of moderate to high water flows.

Waste Treatment

40 CFR 122.2 Definitions• Waste treatment systems, including treatment ponds or lagoons …

are not waters of the United States. This exclusion applies only to manmade bodies of water which neither were originally created in waters of the United States …nor resulted from the impoundment of waters of the United States. [See Note 1 of this section.]

• NOTE: At 45 FR 48620, July 21, 1980, the Environmental Protection Agency suspended until further notice in §122.2, the last sentence, beginning “This exclusion applies . . .” in the definition of “Waters of the United States.” This revision continues that suspension.1

Waste Treatment

New Definition• The following are not “waters of the United

States”• (1) Waste treatment systems, including

treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act.

Definitions

• (5) Tributary: The term tributary means a water physically characterized by the presence of a bed and banks and ordinary high water mark, as defined at 33 CFR § 328.3(e), which contributes flow, either directly or through another water, to a water identified in paragraphs (a)(1) through (4) of this section. In addition, wetlands, lakes, and ponds are tributaries (even if they lack a bed Page 328 of 370 and banks or ordinary high water mark) if they contribute flow, either directly or through another water to a water identified in paragraphs (a)(1) through (3) of this section. A water that otherwise qualifies as a tributary under this definition does not lose its status as a tributary if, for any length, there are one or more man-made breaks (such as bridges, culverts, pipes, or dams), or one or more natural breaks (such as wetlands at the head of or along the run of a stream, debris piles, boulder fields, or a stream that flows underground) so long as a bed and banks and an ordinary high water mark can be identified upstream of the break. A tributary, including wetlands, can be a natural, man-altered, or man-made water and includes waters such as rivers, streams, lakes, ponds, impoundments, canals, and ditches not excluded in paragraphs (b)(3) or (4) of this section.

Definitions

(5) Tributary: The term tributary means a water physically – characterized by the presence of a bed and

banks and ordinary high water mark, –which contributes flow, either directly or

through another water, to a water (of the U.S.).

Definitions

• (5) Tributary:• Wetlands, lakes, and ponds are tributaries – (even if they lack a bed and banks or

ordinary high water mark) if they – contribute flow, either directly or through

another water to a water (of the U.S.)

Definitions

• (5) Tributary:• A water that otherwise qualifies as a tributary does not

lose its status as a tributary if, – for any length, there are one or more man-made

breaks (such as bridges, culverts, pipes, or dams), – or one or more natural breaks (such as wetlands at the

head of or along the run of a stream, debris piles, boulder fields, or a stream that flows underground)

– so long as a bed and banks and an ordinary high water mark can be identified upstream of the break.

Definitions

• (5) Tributary:• A tributary, including wetlands, can be a

natural, man-altered, or man-made water and includes waters such as rivers, streams, lakes, ponds, impoundments, canals, and ditches not excluded in this rule.

Definitions

(7) Significant nexus: The term significant nexus means that a water, including wetlands, either alone or in combination with other similarly situated waters in the region (i.e., the watershed that drains to the nearest water [of the U.S.] significantly affects the chemical, physical, or biological integrity of a water [of the U.S.].

Definitions

(7) Significant nexus (cont’d) For an effect to be significant, it must be more than speculative or insubstantial. Other waters, including wetlands, are similarly situated when they perform similar functions and are located sufficiently close together or sufficiently close to a “water of the United States” so that they can be evaluated as a single landscape unit with regard to their effect on the chemical, physical, or biological integrity of a water [of the U.S.].

Galbraith, Ed, Barr Engineering, US EPA Draft Rulemaking on Waters of the US, at Missouri Water...

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