New Year, New Waters: The Waters of the United States are rebranding.
Chances are, when you’re tanning on a boat, you’re not thinking about whether the stream or river whose current you’re riding falls under the WOTUS heading.
More likely, your attention is on the mosquitoes. Or whether the fish are biting. Or if you’ll make it back to shore before that threatening storm cloud fulfills its grim promise. (Spoiler alert: you won’t.)
Yet whether or not a particular waterway falls under the jurisdiction of the Waters of the United States (WOTUS) does matter a great deal to almost all of us. For manufacturers and refineries, jurisdictional waters and the definition of WOTUS dictate how they get rid of their waste. For families, it has critical implications for the drinking water supply. It is inextricably linked to social justice.
And for the country as a whole, this ping-pong game of waters regulations causes confusion and frustration of epic proportions. For no one is this more true than developers, though, since they’re responsible for knowing the rules and adhering to them – even when they’re hard to find, obscure, vague, or constantly changing.
Watershed realities have always posed a problem, of course. Whether you have to keep a weather eye on ephemeral streams or need to stay a certain distance from a swamp, there’s no developing any parcel of land without understanding how it interacts with the wet world around it.
Never fear: Transect is here. Today, we’re going to take a look at the most recent changes to the Clean Water Act (CWA) and how this will impact development timelines, budgets, and permitting requirements.
To do so, we’ll discuss the history of the CWA, how WOTUS is defined today, and what you can do to streamline (get it?) permitting and development in the future. Hint: it involves automation, but let’s not get ahead of ourselves just yet. First, to Clean Water Act 101!
A Brief History of the Clean Water Act
The Biden Administration has brought lots of changes on the environmental front, but they’re hardly the first to take a long look at the United States’ vast collection of lakes, rivers, streams, wetlands, aquifers, bays, inlets, artificial lakes, tributaries, springs … you get it. Water has always been of critical importance, and it always will be. In addition to providing us with the surface water we drink, waters play a pivotal role in biological integrity.
For that reason, the U.S. Environmental Protection Agency (EPA) first introduced the Federal Water Pollution Control Act in 1948. It “was the first major U.S. law to address water pollution,” according to the EPA’s summary. Then, “Growing public awareness and concern for controlling water pollution led to sweeping amendments in 1972. As amended in 1972, the law became commonly known as the Clean Water Act (CWA).” WOTUS had appeared.
Further updates and revisions altered how treatment plants processed water and made changes to funding, at the same time making it easier for states to partner with the EPA on water quality issues.
New Statue on the Block
Before 2001, WOTUS was not defined. We see the first major regulatory attempt at clearing up the ambiguity of WOTUS by the U.S. Supreme Court. At this time, the Court ruled that intrastate waters used by migratory birds for habitat are excluded from WOTUS protections. Later rulings, such as Rapanos v. United States, determined that for waters to classify as traditional navigable waters must have a "significant nexus" to receive protection, regardless if they connect with adjacent jurisdictional waters or are permanent.
Then Obama stepped in.
WOTUS in the Obama Era
Waters of the U.S. may have been introduced, but a clear definition of waters of the United States has not. It’s no surprise that protecting natural resources can get a littttle bit dicey on the political front.
The defined waters under federal jurisdiction have been a decades-long game of ping-pong. New definition after new definition has been introduced so many times that WOTUS are in a constant, full-blown identity crisis. We are talking listening to Avril Lavigne and telling your mom, “it’s not a phase,” kind of crisis. Serious business.
One of the most recent regulatory definitions adding to this crisis comes from the Obama Era.
The Obama Administration created the Clean Water Rule (CWR) in 2015 to try and give WOTUS an identity that might stick.
President Barack Obama’s goal was to put an end to the confusion surrounding which waters were considered under the jurisdiction of the CWA and which were not.
Why did such confusion exist? Because, explains The New York Times, a set of Supreme Court rulings in 2001 and 2006 created uncertainty around “which smaller streams and headwaters and wetlands fell under federal authority.” Accordingly, “Obama officials said the rule was meant to clarify that authority, allowing the government to once again limit pollution in those smaller bodies of water.”
As the rule applied to roughly 60 percent of the water in the US – and represented about a third of America’s drinking water sources – it was a much-needed change. Now Uncle Sam once again had the abilities it had before 2001.
Which is when the Trump administration rolled onto the scene.
Trump-Era: Protection Rollbacks
Trump, one whose platform issues was to roll back the federal government’s perceived overreach in the Obama-era adjustments to the CWA, made a point of immediately beginning the process when he took office.
How did they go about this? By giving WOTUS a new identity under the Navigable Waters Protection Rule (NWPR) in Janurary 2020 and a quick repeal of the CWR.
Their goal: to rebalance the relationship between state and federal governments, returning the right to manage waters back to the states themselves. Less than 5 years after they’d been introduced by Obama, the newly instated protections for smaller streams and waterways were undone.
Notable exclusions from WOTUS protections were ephemeral streams and isolated wetlands.
It’s no surprise, then, that one of Biden’s first orders of business was to put an end to this confusion once and for all.
Recent Changes to the CWA
The EPA has been blocked before in its attempts to regulate pollution, so this time around, lawmakers wanted to ensure that waterways had broad protections. In the interest of public health, environmental protection, the economy, and agriculture, it returned much of the pre-2015 interpretation of the CWA.
As of December 2022, we now have much clearer rules of how WOTUS is defined and what constitutes a waterway in its jurisdiction. According to the new rule issued in the Federal Register by the Environmental Protection Agency and U.S. Army Corps of Engineers, WOTUS boundaries apply when “upstream waters significantly affect the integrity of waters for which the Federal interest is indisputable—the traditional navigable waters, the territorial seas, and interstate waters.”
According to Holland and Knight, “The WOTUS Rule sets forth what would be considered the "significant nexus" standard for "tributaries," "adjacent wetlands” and "streams" as waters that "either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of waters.”
The significant nexus standard has varied with each ruling.
In this case, the rule continues, CWA programs apply and draw “such upstream waters” under the WOTUS umbrella. Where this isn’t the case, then tribes and states have jurisdiction over those waters. Also, the WOTUS rule is at pains to point out, simply by dint of being a WOTUS-designated waterway does not mean that no other activity can occur on that water.
(Looks like boating through clouds of mosquitoes while trying to outrun the rain is still safe, phew!)
This revised definition is set to serve as a final rule to outline water protections for all of our nation’s waters. After each rulemaking process and Supreme Court decisions, we are about to see what the court of public comment says about our new definition. How will this fit into our processes?
Well, knowing the definition of such waters is only the first step. Land developers should know if a water under federal regulation is on their project site and if their current land use complies with outlined protections.
Is WOTUS Present: Yea or Nay?
First and foremost, are WOTUS present? This is the first question you must answer on any parcel before you can move forward with development strategies. To find out, you need a wetland delineation and potentially an approved jurisdictional determination, or AJD.
According to the EPA, this “is a document provided by the Corps stating the presence or absence of [WOTUS] on a parcel or a written statement and map identifying the limits [WOTUS] on a parcel.” Such AJDs are valid for five years from the issue date, “unless new information warrants revision prior to the expiration date.”
Many developers are wondering whether the changes to the CWA apply to approved jurisdictional determinations they hold now, and the answer is … it depends. If you applied for an AJD, these rules will apply depending on the completion date rather than the application date.
Rules may also vary depending on whether the AJD is associated with a permit action; whether pre-2015 regulations weigh into the AJD; and whether regulatory criteria are met for modifying, suspending, or revoking an existing permit.
Yeah … it's a lot, which is why thinking ahead is more important than ever.
What This Means for Permitting and Development
Your first move is to determine whether a particular parcel contains waterways that are considered WOTUS. If so, you are subject to those rules. If not, jurisdiction drops down to the state or tribal level, whichever applies to the parcel in question.
If they are present, they will effect your development process (again, get it?) to the tune of permitting, planning, and environmental mitigation. If you want to save money in renewables development, though, it’s crucial to get on it.
Transect can help you there.
Take Control of Your Environmental Permitting Process
Too many developers rely on their lucky stars to swoop in and deliver permits in the middle of the development process, when they’ve already fallen in love with a piece of land and invested in it. That, my friend, is a bad move, because it leaves you at the mercy of the fates.
Instead, you can take charge by doing your due diligence upfront. Rather than waiting weeks for a spendy environmental report, you can now get one in mere minutes … right at the outset of development. Keep all of your development team and stakeholders in the know about your project risks and needs from the beginning. No blindsiding on the site and no surprises in the budget for mitigation.
Say goodbye to disappointment and hello to expert planning. Ready to learn more? Get in touch with Transect to schedule a demo today!