The document discusses the current status of the Waters of the U.S. Rule and key definitions and implications from the final rulemaking. It notes that a US District Court granted an injunction blocking implementation of the rule for 13 plaintiff states. It also discusses definitions of terms like tributary, ditch, and significant nexus from the rule. Specifically, it explains that under the rule a tributary can include man-altered or constructed features like ditches but not ditches excluded under the rule. It also states that a water body does not lose its status as a tributary if it flows through constructed breaks or features like culverts.

1. 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.

2. 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

3. 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

4. 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.

5. 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.

6. Rule
Definition of a Ditch

7. Common Definition of a Ditch
A long narrow trench or furrow dug in
the ground, as for irrigation, drainage
or a boundary line.

8. What a ditch is not
• A relocated tributary
• Excavated in a tributary
• Drains wetlands (intermittent flow)
• Has perennial flow

9. Ditch or Tributary?
• A tributary can be a ditch and a ditch can be a
tributary
• Case by case, the definition can be vague

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

11. 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.

12. Ditches in Low Places

13. Ditches in Low Places
• Drains a wetland in 100 year floodplain of
TNW

14. • 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

15. • 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

16. 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.

17. 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