This document discusses the controversy and confusion surrounding the proposed Waters of the U.S. rule. It notes that the draft rule was released without input from states and that definitions in the rule are unclear. Visualizations of the potential impact of the rule show that it could extend federal jurisdiction over remote ditches, tributaries, and large floodplain areas. Stakeholders are encouraged to submit comments on the proposed rule by October 20th to address outstanding issues and lack of clarity.

1. Waters of the U.S.:
Facts & Impacts of the Proposal?
Adrienne Nemura, P.E.
David Carani
9th Annual Missouri Water Seminar
Columbia, MO
September 4, 2014

2. Fact: There is a Lot of Controversy
https://www.youtube.com/watch?v=9U0OqJqNbbs&feature=youtu.be
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3. Fact: We Have Trust Issues
• Draft went to OMB without states knowing; leaked
• Connectivity report still not finalized by Science Advisory Board
• Companion “Interpretive Rule” of 56 practices
• Definitions that are confusing
• Declaration of significant benefits & CWA protection, but EPA/Corps claim
“business as usual” with little indirect costs
• NRCS not at any of the meetings
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4. Fact: Individual Regulators May
Have Different Interpretations
July 18, 2014 letter to
Gina McCarthy and
Bob Perciasepe
Definition from proposed rulemaking was then read…
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“
“

5. Fact: There is a Lot of Confusion
Michigan Example
Actually, a
permit would be
needed…
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This won’t
change
anything.
We have to
rewrite our
agreement!

6. Fact: Not just CWA §404 (dredge or fill )
• All sections of the CWA, including
– Water quality standards
– Total Maximum Daily Loads (TMDLs)
– NPDES permits
• Broad overreach beyond “immediately connected” wetlands?
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The Corps
determined that
the rule would
only result in a
3% increase in
jurisdictional
waters.

7. WOTUS Includes:
Ditches not in “uplands” or upland ditches
that contribute flow to another WOTUS
year-round.
Former tributaries that have been
improved for drainage.
Tributaries (natural or manmade channels)
that have
1) A discernible bed, bank, and ordinary
high water mark;
2) Flow year-round (perennial),
seasonally (intermittent), or only
when it rains (ephemeral); and
3) Contribute flow through a surface or
subsurface connection (including
rivers, streams and, subject to certain
conditions, ditches).

8. Geosyntec Consultants 8
Source: Waters Advocacy Coalition

9. IMPACT:
Visualizing the WOTUS Rule for
Rivers, Streams and Floodplain
Areas
Provided as a service of the Agricultural
Nutrients Policy Council
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10. What Were Mapped?
• Rivers and streams– categorically WOTUS under the
rule as “tributaries”
– Perennial tributaries
– Intermittent tributaries
– Ephemeral tributaries (only approximately 35% of ephemerals
are mapped, as federal data for other 65% are not available)
• Floodplains -- waters and wetlands in floodplain are categorically
WOTUS
– Floodplain is not defined in rule
– We used
• FEMA 100 year floodplain data where available
• For tributaries without FEMA 100 year floodplain data, used a
35 ft buffer on each side of the tributary
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11. Visualizing WOTUS for Rivers and Streams and Floodplains
17 States Mapped So Far

12. Visualizing WOTUS for Rivers and Streams and Floodplains
Project Approach
Blue lines are
streams at medium
resolution.
Red lines are
streams at high
resolution.
FEMA flood plains
in yellow hatching.
Aerial imagery used to show
addition of 35-foot stream
buffers (each side of stream).

13. Stream Miles (1:100K to 1:24K)

14. Floodplain & Stream Buffers (1:100K to 1:24K)

15. N. East Missouri farming region – mapped WOTUS tributaries ,
ditches and streams, in blue/red, and hatch marked FEMA 100
year floodplain. Other likely tributaries marked with a “ “.
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16. Beyond High Resolution
High resolution NHD underestimates
stream network by 65%
Argonne National Laboratory Algorithm
900% More Streams than NHD
States Using LIDAR
to Map 1:5,000 Streams
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17. Project Approach: Helping People
Visualize Potential Impact
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18. Geosyntec Consultants 18

19. Should You Comment?
1) If nothing is really changing, and rule language is
still not well defined, more discussion (and maps) is
needed.
2) Difficult for states to administer 305(b), 303(d) and
NPDES programs without good maps.
3) State-by-state differences suggest a one-size-fits-all
solution could be very problematic.
4) Impacts sanitary sewer overflow and spill
reporting?
5) Impacts stormwater maintenance?
6) Impacts green infrastructure?
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20. Comments due
Monday October 20, 2014!
• Many trade organizations
• EPA information on the proposed rule
– http://www2.epa.gov/uswaters
• Docket
– http://www.regulations.gov/#!docketDetail;D=
EPA-HQ-OW-2011-0880
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