Waters Of The United States Research Articles

What Is Relatively Permanent? Flow Regimes of Arizona Streams within the Context of the 2023 Conforming Rule on the Revised Definition of “Waters of the United States”

The classification of stream flow regimes has been a subject of study for over a half century in the fields of hydrology, geomorphology, ecology, and water resources management. But with the most recent Supreme Court decision on jurisdictional Waters of the United States (WOTUS) and the 2023 Conforming Rule, the answer to the question of which waters are relatively permanent has increased in importance and urgency. One state where this question is salient is Arizona, where approximately 95% of its streams are nonperennial. In this study, we use long-term (>30 years) daily discharge records from Arizona to assess semi-natural flow regimes of arid streams within the context of the 2023 Conforming Rule. Using flow percentile distributions, we distinguished flow permanency—ephemeral vs. intermittent vs. perennial—for 70 stream reaches distributed throughout the state. Ephemeral streams had a median flow of 0 cms and a 75th percentile flow permanence less than 25% (i.e., less than 3 months of flow for every 7.5 out of 10 years). On the other end of the spectrum, perennial streams had a 90th percentile flow permanence of 100%. In the middle, intermittent streams had a 75th percentile flow permanence greater than 25% and a 90th percentile flow permanence less than 100%. We also assessed the effect of the recent megadrought (since 1994) on flow permanency. As a result of the megadrought, four perennial streams transitioned to intermittent, four intermittent streams transitioned to ephemeral, and one perennial stream became ephemeral. The flow classification we present here is specific to Arizona streams but could be useful to other arid regions seeking to answer the question of which streams are relatively permanent in a typical year.

An Update on the County of Maui v. Hawaii Wildlife Fund

Key TakeawaysA 2020 court case was pivotal in further determining how to regulate pollutant discharges to groundwater and subsequently to waters of the United States (WOTUS).Subsequent cases have added uncertainty to the very definition of WOTUS and what is required of water and wastewater treatment facilities to be in compliance.Facilities would be wise to stay current on WOTUS‐related developments and consider conducting a “functional equivalence” analysis.

The Evolution of the “Waters of the United States” and the Role of Economics

For nearly 50 years, the Clean Water Act (CWA) has served as the main environmental statute that regulates water quality in the United States. Yet the jurisdictional limits of the act, in terms of which waters are regulated, remain unresolved. This article reviews the complicated history of these waters of the United States (WOTUS) and discusses the important role of economics in understanding the benefits and costs of a narrow versus a broad definition of WOTUS. During the Obama and Trump administrations, several economic analyses arrived at different conclusions regarding whether to expand or reduce CWA protections. We examine the key components of these analyses, including a novel federalism analysis used to support deregulation of US waterways. In this analysis, the Trump administration assumed that states would fill regulatory gaps left by the federal government. We conclude with some thoughts about key issues for the Biden administration to consider as it develops its own definition of WOTUS as well as research priorities for economists seeking to inform the debate about WOTUS.

Florida’s efforts to assume section 404 permitting

Section 404 of the federal Clean Water Act prohibits disposing of dredged and fill materials into the waters of the United States (WOTUS) absent a permit or statutory exception. Often, development in wetlands requires a dredge and fill permit under the Clean Water Act. The U.S. Army Corps of Engineers is the agency authorized to grant such permits unless a state assumes this responsibility as provided under the same statute. In 2005, the Florida Department of Environmental Protection (FDEP) explored assumption of §404 permitting resulting in a report to the Florida legislature finding the department could not assume this responsibility due to inadequate state staff and funds. Despite significant reductions in staff and funding since then, FDEP’s current position is that the department can assume this responsibility without adding to its budget due to duplicative permitting of wetlands development under state statutes. The State of Florida submitted its assumption package to the U.S. Environmental Protection Agency (EPA) on 20 August 2020. If approved by the EPA, Florida will be only the third state to assume §404 permitting authority from the Corps of Engineers. The action is not without controversy and is mostly opposed by those in the environmental protection community. A new federal rule defining WOTUS effective 22 June 2020, further complicates §404 assumption for any state.

Mainstream and Heterodox Approaches to Water Quality Valuation: A Case for Pluralistic Water Policy Analysis

Cost-benefit analyses have largely failed to demonstrate a positive benefit to cost ratio for programs designed to improve and protect water quality in the United States and European Union. At the same time, research from outside economics suggests that water quality ranks among the most urgent environmental concerns and highlights deep social and cultural connections to clean water. Exploring alternative explanations for this apparent water value paradox is essential to informing contemporary rulemaking and regulatory analyses, such as the Clean Water Act and the debated Waters of the United States (WOTUS) rule. I review contemporary advances in mainstream environmental economics relevant to the value of clean water, frontiers that have not yet been integrated into mainstream valuation methods, and pluralistic approaches from sociology, history, and moral philosophy that offer policy-relevant insights but do not fit neatly in cost-benefit frameworks of valuation. The review concludes with recommendations for improved water quality planning and policy in pursuit of a more comprehensive and pluralistic understanding of the value of clean water.

Modern Evaluation of the Status of WOTUS

AbstractThe term waters of the United States (WOTUS) has been a part of US legal jargon since it was first introduced in the 1972 amendments to the Federal Water Pollution Control Act, now known as...

An Intensive Cultural Resources Investigation for the Redbud Pump Station Transmission Water Line Project Collin County, Texas

The City of McKinney (City) is proposing to construct and maintain 2.2 kilometers (km; 1.4 miles [mi]) of 42- inch (in) water transmission line for the Redbud Pump Station Transmission Water Line Project (Project) located within the City of McKinney, in west-central Collin County, Texas (Appendix A, Figure 1). On behalf of the City, BGE, Inc. (BGE) conducted an intensive pedestrian survey augmented by shovel testing of the Project. Because the proposed project is being contracted by the City of McKinney, a political subdivision of the state of Texas, the project sponsor is required under the Texas Antiquities Code and the Texas Natural Resources Code Chapter 26 ‘Rules of Practice and Procedure for the Antiquities Code of Texas’ to obtain a Texas Antiquities Permit to perform cultural resources investigations to assess whether cultural resources are present that may rise to the level of significance of State Antiquities Landmark (SAL) status. The Texas Historical Commission (THC) has assigned Antiquities Permit number 8763 to the Project. Furthermore, project construction designs minimize impacts to Waters of the United States (WOTUS) crossed by the project, not meeting the minimum threshhold established under Section 404 of the Clean Water Act (CWA) for the requirement of a Pre-Construction Notification (PCN) to the United States Army Corps of Engineers (USACE).

Headwater Streams and Wetlands are Critical for Sustaining Fish, Fisheries, and Ecosystem Services

Headwater streams and wetlands are integral components of watersheds that are critical for biodiversity, fisheries, ecosystem functions, natural resource‐based economies, and human society and culture. These and other ecosystem services provided by intact and clean headwater streams and wetlands are critical for a sustainable future. Loss of legal protections for these vulnerable ecosystems would create a cascade of consequences, including reduced water quality, impaired ecosystem functioning, and loss of fish habitat for commercial and recreational fish species. Many fish species currently listed as threatened or endangered would face increased risks, and other taxa would become more vulnerable. In most regions of theUSA, increased pollution and other impacts to headwaters would have negative economic consequences. Headwaters and the fishes they sustain have major cultural importance for many segments of U.S. society. Native peoples, in particular, have intimate relationships with fish and the streams that support them. Headwaters ecosystems and the natural, socio‐cultural, and economic services they provide are already severely threatened, and would face even more loss under the Waters of the United States (WOTUS) rule recently proposed by the Trump administration.

US Environmental Protection Agency’s new Waters of the United States Rule: connecting law and science

AbstractThe question of the kinds of water bodies federal and state agencies may regulate under the federal Clean Water Act (CWA) has reached the US Supreme Court 3 times without clear resolution. The Waters of the United States (WOTUS) rule adopted by the Environmental Protection Agency and the Army Corps of Engineers (collectively, the agencies), based in part on a recent synthesis of science regarding the connectivity of surface waters (USEPA 2015), seeks to reduce regulatory uncertainty by clarifying which waters are subject to CWA regulation. The rule makes progress in that regard, but has been challenged in court on grounds that the agencies seek jurisdiction over waters that are not properly covered in the CWA, and members of Congress have taken steps to overturn the rule legislatively. The rule’s legality depends on: 1) the breadth of federal constitutional authority over “navigable” waters, 2) the text and meaning of the CWA, and 3) the relationship between the proposed regulation and the science...

Nutrient Composition of Dust Emitted from Poultry Broiler Houses in Northwest Arkansas

A substantial body of research has been conducted on the potential water quality impairments associated with land application of poultry broiler litter. However, until recently, little attention has focused on the potential for nutrient runoff from dust emitted from broiler production houses despite related air quality concerns raised by the United States (US) Environmental Protection Agency. The objective of this study was to characterize the composition of broiler house dust (BHD) and compare BHD composition to that of broiler litter (BL). Dust composition varied significantly (P < 0.05) among facilities operated by different integrator companies, likely due to differences in feed and house management among integrators. Specifically, BHD pH was lower (P < 0.05) in Facility 1 than in Facilities 2 and 3, which did not differ, whereas BHD K and Ca were greatest (P < 0.05) in Facility 1 and 2, respectively. The facility average moisture content of BHD was at least 1.9 times lower than that for the BL from the same facility. The facility average total phosphorus (TP) and water extractable phosphorus (WEP) concentrations in BHD were at least 1.2 and 1.6 times greater, respectively, than that for BL from the same facility. The greater WEP in BHD than in BL is of particular environmental importance given that extensive research shows WEP to be a major variable influencing P runoff risk. The facility average total nitrogen (TN) concentration in BHD was at least 3.0 times greater than that for BL from the same facility. As TP, WEP, and TN are greater in BHD than in BL, there is a greater risk of nutrient enrichment of runoff from an equivalent mass of BHD than BL. The results of this study highlight the need for careful management of dust emissions from broiler houses and a need for conservation practices to minimize the risk of BHD increasing nutrient runoff and its loss to waters of the US.

Surficial features associated with ponded water on playas of the arid southwestern United States: Indicators for delineating regulated areas under the Clean Water Act

Desert playas can be unambiguously identified in a geological context. However, identifying those portions of desert playas that are defined as either three-parameter wetlands or Waters of the United States (WoUS) in the Clean Water Act (CWA), and thus under the jurisdiction of Federal agencies charged with enforcing the CWA, is sometimes problematic. Although the WoUS definition specifically includes playas, the guidance for playa delineation is not as highly developed as that for wetlands. Delineating WoUS on desert playas involves determining the Ordinary High Water Mark. Field experience has demonstrated that the indicators for Ordinary High Water on desert playas have not been fully identified nor have they been associated with ponding that represents the limits of Ordinary High Water. This report discusses the distribution of indicators above, below, and at the Ordinary High Water Mark. Fifteen playa features are identified for possible delineation use and are rated for reliability and their relationship to the Ordinary High Water position.