Navigable Waters in Texas
Navigable waters, or a navigable stream, are defined as waters subject to the ebb and flow of the tide or having possible use for transport. These waterways may include streams mentioned above and the United States Army Corps of Engineers (USACE) protects them under the current interpretation of WOTUS.
In Texas, navigable waters are either “navigable in fact” or “navigable by statute.” To be “navigable in fact,” the water has to be seen as serving public utility or value for a portion of the year to the public in their natural state. For water to be “navigable by statute,” the water is classified as having a width of 30ft from the mouth up, regardless of dry seasons. Should the water fit this description, it is protected as public water. This definition of navigable waters extends to private property with the exception of a streambed, which Texas clarified in the 1929 “Small Bill” as an attempt to balance the needs of regulation with the requirements of private landowners.
This definition protects many Texas streams, including indirect regulation for some ephemeral streams that provide flow for valuable downstream waters. Though navigable waters have extensive protection, other waters are also subject to regulation.
For example, even in the case of non-navigable waters, a permit is required when damming waters over 200 acre-ft of water in Texas.
Texas climate covers both arid regions and regions of significant precipitation, allotting for temporary and non-permanent streams. According to data maps from the USGS, Texas streams cover over 191,228 miles of Texas land. These streams feed both into larger bodies of water, such as the Gulf of Mexico, and impact important groundwater, such as aquifers used for drinking water.
Texas Ephemeral Streams
The national definition for an ephemeral stream is a feature that only flows due to precipitation events. This definition assumes typical weather conditions for the climate of the region.
Texas follows this national definition of ephemeral streams, only adding further distinction as streams with flow less than 30% of the year.
These streams are considered temporary and are the smallest in size and flow strength. These waters are “headwaters,” meaning they flow into the more significant streams seen below. There is debate about their regulation due to their lack of constant presence and impact on downstream waters.
Protection for Ephemeral Streams
Federal WOTUS, under its current definition, protects ephemeral streams. Additional measures by the state do not explicitly protect Texas ephemeral streams. Many of these streams provide flow to larger downstream waters, receiving some indirect protection via connection to regulated navigable waters.
Texas Intermittent Streams
Texas defines intermittent streams as a well-defined channel, flowing during the wet seasons or 30-90% of the year. Intermittent streams are protected under the CWA as navigable waters and the state of Texas further protects them.
Texas Perennial Streams
Texas defines perennial streams as a stream with a well-defined channel and a flow for 90% or more of the year. These waters are the most significant streams, often called rivers, and are commonly called “permanent streams” due to their constant presence.
Perennial streams are clearly defined within the CWA as part of the WOTUS and protected under this definition.
The CWA describes wetlands as a region saturated with groundwater or surface water long enough to support vegetation that prefers wet areas.
A Texas Water Code section defines a wetland as an area predominant in hydric soils and saturated by surface water or groundwater at an adequate amount for the growth and regeneration of hydrophytic vegetation. This definition includes swamps, marshes, bogs, prairie potholes, or similar areas.
This definition excludes less than an acre of artificial wetlands, irrigated farmland, and wetlands created for water or soil conservation.
Wetlands are transitional zones that can be difficult to recognize, particularly if surface water is absent. The presence of this feature remains constant between deep waters and uplands. These features may not be filled with water year-round and may fill with water after a flood or storm.
Protection for Texas Wetlands
Protection for this type of water body is within sections 401 and 404 of the CWA. Waters that do not fall into this classification may be subject to a state water law by the Texas Water Code. The Texas Commission on Environmental Quality (TCEQ) facilitates 401 water quality certifications for most activities. To review projects for 404 certificates, the TECQ follows a tier system.
- Tier I: For projects impacting less than 3 acres of “waters of in the state.” No additional 401 certification review is required, and best practices are followed
- Tier II: Projects more extensive than the description outlines in Tier I. These projects have more significant ecological impacts and are subject to further 401 reviews
Further division of supervision includes:
- Oil and Gas activities: 401 Certification provided by The Railroad Commission of Texas (RRC). The RRC and TECQ follow different 401 certification rules, permits, and regulations
- Private Landowners: Advised regarding wetlands by The Texas Forest Service
- Coastal Wetlands: Managed by the Texas General Land Office (TGLO) under regulations in the Texas Natural Resource Code
Over 41 Texas permits apply to wetlands, and many joint licenses with the federal government also exist. Further application of Texas anti-degradation policies is included in some regulation parameters.