Waters of the U.S. Rule Current Status

• August 27, 2015 - US District Court for the District of North Dakota granted a motion for preliminary injunction to a coalition of 13 states, including Missouri, attempting to block implementation of the WOTUS Rule

• On September 4, 2015, the court clarified that the injunction would only apply to the 13 plaintiff States.

Final Rulemaking: Definition of Waters of the United States and Implications for Jurisdictional

Status of Man-Made or Man-Altered Linear Waters Connected to Interstate and Traditional

Navigable Waters in Missouri

Or, excuse me, but is this a ditch?

Final Rulemaking: Definition of Waters of the United States and Implications for Jurisdictional

Status of Man-Made or Man-Altered Linear Waters Connected to Interstate and Traditional

Navigable Waters in Missouri

Rule Definition of Tributary

• Final Rule: a water that is characterized by the presence of the physical indicators of a bed and banks and an ordinary high water mark.

Rule Definition of Tributary

• A tributary can be a natural, man-altered, or man-made water and includes waters such as rivers, streams, canals, and ditches not excluded under paragraph (b) of this section.

Rule Definition of a Ditch

Common Definition of a Ditch

A long narrow trench or furrow dug in the ground, as for irrigation, drainage or a boundary line.

What a ditch is not

• A relocated tributary

• Excavated in a tributary

• Drains wetlands (intermittent flow)

• Has perennial flow

Ditch or Tributary?

• A tributary can be a ditch and a ditch can be a tributary

• Case by case, the definition can be vague

Mommas, Don’t Let Your Ditches Grow Up to be Tributaries

Mommas, Don’t Let Your Ditches Grow Up to be Tributaries

• The definition of tributary includes those that have been man-altered or constructed, but which science shows function as a tributary.

Ditches in Low Places

Ditches in Low Places

• Drains a wetland in 100 year floodplain of TNW

• A water does not lose its status as a tributary if, for any length, there are one or more constructed breaks (such as bridges, culverts, pipes, or dams).

Over the Culvert and Through the Woods

• The rule clarifies that a water meets the definition of tributary if the water contributes flow through an excluded feature such as a ditch.

Brain Teaser

Brain Teaser

• A tributary is a tributary even if it flows through an excluded ditch,

but

• A ditch that is a relocated tributary cannot be an excluded ditch.

Significant Nexus

• All waters located within the 100-year floodplain of a water identified in (a)(1) through (3) of this section and all waters located within 4,000 feet of the ordinary high water mark of a water identified in paragraphs (a)(1) through (5) where they are determined on a case-specific basis to have a significant nexus to a water identified in paragraphs (a)(1) through (3) of this section