Don Parrish
Senior Director
American Farm Bureau Federation
[email protected]
202-406-3667
1

The Proposed Rule replaces the definition of
“navigable waters” and “waters of the United
States” for all CWA programs including:
◦ Section 404 dredge and fill permits
◦ Section 402 NPDES Permitting
◦ Section 311 Spill Prevention, Control and
Countermeasure Plans (SPCC)
◦ Section 303 Water Quality Standards & TMDLs
2
1.
2.
3.
4.
5.
6.
7.
All waters currently, in the past, or may be susceptible to
use in interstate or foreign commerce, including tidal
waters;
All interstate waters, including interstate wetlands;
The territorial seas;
All impoundments of waters identified in 1-3 above;
All tributaries of waters identified in 1-4 above;
All waters, including wetlands, adjacent to waters identified
in 1-5 of this section; and
On a case-specific basis, other waters, including wetlands,
that alone or in combination with other similarly situated
waters in the region have a significant nexus to a water
identified in paragraphs 1-3
3
Focus for Discussion:
◦ Tributaries
◦ Adjacent Waters
◦ “Other” Waters
4



Tributary = anything with flow (including ditches)
(bed, bank and OHWM)
Adjacent Waters = waters that are otherwise
isolated but are “next” to any tributary including
all waters in a floodplain and riparian area (water
is not defined)
Other waters = Geographically isolated waters far removed from any hydrological connection that can be aggregated with “other waters” within
“single landscape unit” to find significant nexus
5


“The terms water and water bodies do not refer
solely to the water contained in these aquatic
systems, but the system as a whole including
associated chemical, physical, and biological
features” (79 Fed. Reg. 22191)
Translation – H2O not necessary
6


“A tributary is a longitudinal surface feature that results
from directional surface water movement and sediment
dynamics demonstrated by the presence of bed and
banks, bottom and lateral boundaries, or other
indicators of OHWM.” “It also says “in some regions of
the country where there is a very low gradient, the
banks of a tributary may be very low or may even
disappear at times.” (79 Fed. Reg. 22202)
Translation - the rule will regulate land where water
channels and flows when it rains, so long as the flowing
water leaves a mark on the land. It may even regulate
land where there is no visible channel or marks left by
flowing water.
7
8


“Under the proposed definition of tributary,
the upper limit of a tributary is established
where the channel begins.” (79 Fed. Reg.
22202)
Translation - Channels are tributaries.
(Volume, Frequency and Duration does not
matter).
9


“When considering whether the tributary being
evaluated eventually flows to an (a)(1) through
(a)(4) water, the tributary connection may be traced
using direct observation or USGS maps, aerial
photography or other reliable remote sensing
information.” (79 Fed. Reg. 22202)
Translation - Any hydrological connection is
enough - Volume, duration or frequency of flow
does not matter.
11
12
13

Artificially irrigated areas,
Artificial lakes or ponds,
Artificial reflecting pools
Swimming pools,
Small ornamental waters

Are Not WOTUS (79 Fed. Reg. 22218))




14
Approximate Federal Jurisdiction
Pre-Propose Rule
Surface Area: 48 Square Miles
Approximate Lengths of Streams:
•Perennial
47 mi
•Intermittent 96 mi
15
Detailed surface water data
maintained by local sanitation
district.
Approximate lengths of streams
shown on this map:
• Perennial
47 mi
• Intermittent
96 mi
• Ephemeral
384 mi
About 850 small ponds in this
view have a total area of about
200 acres.
16
17
19
◦ Enforcement/likelihood for potential
illegal discharges
◦ Type of permit: General or individual
◦ “Federal action” triggers: NEPA, ESA,
NHPA, 401 water quality certification,
etc.
◦ Mitigation
◦ Third-party citizen suits
20
21