Understanding the Jurisdictional Status of Tributaries in EPA's Water Regulations, Study notes of Hydrology

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T R A I N I N G O N T R I B U TA R I E S A N D D I TC H E S F O R S TAT E S A N D T R I B E S

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Today’s Presentation

• Tributaries & Flow Duration Classifications
• Jurisdictional Ditches
• Tools and Resources
• Questions and Answers

(a)(2) Tributaries:

“Tributary” means a river, stream, or similar naturally occurring surface water channel that contributes surface water flow to a paragraph (a)(1) water in a typical year, either directly or through one or more paragraph (a)(2)-(4) waters. A tributary must be perennial or intermittent in a typical year.

• A tributary does not lose its jurisdictional status if it contributes surface water flow to a downstream jurisdictional water in a typical year through a channelized non-jurisdictional surface water feature, through a subterranean river, through a culvert, dam, tunnel, or similar artificial feature, or through a debris pile, boulder field, or similar natural feature.
• The alteration or relocation of a tributary does not modify its jurisdictional status as long as it continues to satisfy the flow conditions of the definition. The term tributary includes a ditch that either relocates a tributary, is constructed in a tributary, or is constructed in an adjacent wetland as long as the ditch satisfies the flow conditions of this definition.

Key Definitions

Perennial:

• The term perennial means surface water flowing continuously year- round.

Intermittent:

• The term intermittent means surface water flowing continuously during certain times of the year and more than in direct response to precipitation ( e.g ., seasonally when the groundwater table is elevated or when snowpack melts).

Ephemeral:

• The term ephemeral means surface water flowing or pooling only in direct response to precipitation ( e.g. , rain or snow fall).

Typical Year:

• When precipitation and other climatic variables are within the normal periodic range (e.g., seasonally, annually) for the geographic area of the applicable aquatic resource based on a rolling thirty-year period.

Intermittent Flow

• Intermittent flows may occur seasonally such as in the spring when evapotranspiration is low and the groundwater table is elevated. Under these conditions, the groundwater table intersects the channel bed and groundwater provides continuous base flow for weeks or months at a time even when it is not raining or has not very recently rained.
• Note that groundwater input is not a requirement in the Rule’s definition of “intermittent”.
• Snowpack melt and artificial sources such as effluent can also be sources of intermittent flows.

Snowpack

• The term “snowpack” is defined as “layers of snow that

accumulate over extended periods of time in certain geographic regions or at high elevation (e.g., in northern climes or mountainous regions).”

• “Extended periods of time” refers to more than merely a

single snowfall event or periodic events with repeated snowmelts after each occurrence, but rather recurring snow events which result in an accumulation of multiple layers of snow in certain geographic regions, or at high elevations.

Determining Flow Classification

• Observations of persistent flows during dry times of the year could be a strong indicator of perennial or intermittent flows.
• Persistent flows at any time throughout the year may indicate flow that is intermittent or perennial, so long as it hasn't rained very recently.
• Observations should be interpreted in the context of a typical year (i.e., representative of normal climate conditions). The Antecedent Precipitation Tool is one tool that can be used to inform whether observations of flow are representative of normal conditions.
• Distinguishing between intermittent and ephemeral flows may require a combination of onsite observations, physical and biological indicators of sustained flow durations, and remote evidence.

Contribution of Surface Water Flow

in a Typical Year

• Perennial or intermittent streams that contribute

surface water flow to an (a)(1) water in a typical

year either directly or through one or more

• (a)(2) tributaries
• (a)(3) lakes, ponds or impoundments of a

jurisdictional water

• (a)(4) adjacent wetlands

Channelized Non-Jurisdictional

Surface Water Feature

This type of feature includes non-jurisdictional ditches or ephemeral streams which are not themselves jurisdictional but may provide a channelized surface water connection for upstream perennial or intermittent waters in a typical year.

Subterranean River

A subterranean river is a natural channel that temporarily flows underground as a channelized river or stream, maintaining the same or very nearly the same flow volume underground and at the downstream point where it returns to the surface. Similarly, urban areas can have artificial buried underground tunnel systems that act in the same way.

Debris Pile, Boulder Field, or

Similar Natural Features

Natural features can also convey surface water flows from upstream jurisdictional waters to downstream jurisdictional waters. If those flows are conveyed in a typical year, jurisdiction of the upstream waters is not severed.

Photo: Stream with debris pile.

Connections that Sever Jurisdiction

The following connections sever jurisdiction upstream:

• Stream channel breaks that do not contribute surface water flows to downstream jurisdictional waters in a typical year. - These stream breaks may only convey surface water flows during precipitation events that generally do not occur in a typical year (e.g., 10-, 25-, 50-, 100- or 500-year storms or floods).
• Surface stream channels that disappear underground and become part of the ground water aquifer.
  • They never reconnect with the downstream tributary system (other than possibly via groundwater) and as such are not jurisdictional.

What Is a Ditch?

• A constructed or excavated channel used to convey water.
• Ditches are not a standalone category.
• Ditches are jurisdictional where they are:
  • TNWs, including those subject to the ebb and flow of the tide ( i.e., are (a)(1) waters);
  • Either constructed in or relocate a tributary , or are constructed in an adjacent wetland, and satisfy the flow conditions of the tributary definition ( i.e., are (a)(2) waters); or
  • Constructed in an adjacent wetland and develop wetland characteristics ( i.e., are (a)(4) waters).

When Is a Ditch a Water of the US?

When the ditch meets the conditions of an (a)(1) water

◦ Territorial sea ◦ Traditional Navigable Water (TNW) ◦ Waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including waters which are subject to the ebb and flow of the tide.