Waters of the United States (WOTUS)
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Learn how Waters of the United States are defined and what it means for Land Developers.
Why are Waters Defined Differently by State?
Waters of the U.S. are the oceans, rivers, streams, lakes, creeks, marshes, and wetlands considered "jurisdictional" under the Clean Water Act (CWA) - as in, they are within the regulatory jurisdiction of the United States Army Corps of Engineers (USACE). However, determining which waters are jurisdictional has been debated for decades.
Clean Water Act
What is the Clean Water Act
The Clean Water Act is the federal law that establishes and regulates the water quality for surface water and the discharge of materials into waters in the United States. This law establishes federal jurisdiction for waters outlined as Waters of the United States within the act and informs state and local governments accordingly. The CWA serves as frontline protection for clean drinking water, sustained public health, and environmental protection.
History of the Clean Water Act
The Federal Pollution Control Act of 1948 was the basis for the Clean Water Act. In the 1960s, concern over human impacts on the environment via highway development and other activities grew. President Nixon went on to sign the National Environmental Protection Act (NEPA) in 1970, providing a requirement for environmental regulation for the federal government. With the new ability to extensively regulate environmental impacts, the Federal Pollution Control Act continued to evolve into the Clean Water Act. The U.S. Environmental Protection Agency (EPA) implements additional policies and creates any proposed rule under this act. Outside of the rulemaking process, one of the other federal agencies given power under this act is the U.S. Army Corps of Engineers (USACE). The USACE oversees the permitting process for bodies of water under the protection of the CWA.
History of the Waters of the United States Rule
The Clean Water Act outlines the WOTUS to create clear, simple regulations. However, this definition is vague and not concrete. Due to this, the interpretation of Waters of the United States has varied with nearly every administration.
The 2015 Clean Water Act Rule
The 2015 Clean Water Rule was the interpretation of the WOTUS rule under the Obama administration.
The Obama administration established the defined WOTUS as:
Traditional navigable waters
Impoundments of the jurisdiction in WOTUS- streams and ditches were seen as having a "significant nexus" on the traditionally defined waters above
The 2020 Navigable Waters Protection Rule
The ruling that developers are most familiar with is the Navigable Waters Protection Rule of 2020 (NWPR). The NWPR was the interpretation of the WOTUS rule passed under the Trump administration that drastically narrowed the definition of waters of the U.S. in comparison to previously accepted standards and court interpretations. Criticism of the Trump rule claimed the 2020 Navigable Waters Protection Rule had a narrow scope of protection for sensitive, temporary features, such as an ephemeral stream.
The 2020 Navigable Waters Protection Rule defines waters of the U.S. as:
The territorial seas and traditional navigable waters include large rivers and lakes and tidally-influenced waterbodies used in interstate or foreign commerce.
Perennial and intermittent rivers and streams that contribute surface flow to traditional navigable waters in a typical year
Lakes, ponds, and impoundments of jurisdictional waters that contribute surface water flow to traditional navigable water or territorial sea in a typical year
An adjacent wetland that physically touches jurisdictional water is separated from a water of the U.S. by only a natural berm, bank, dune, or wetland inundated by flooding from a water of the U.S.
A notable exclusion to the 2020 definition of waters of the United States is temporary (dry) tributaries, which historically are jurisdictional if they had some form of chemical, physical, or biological connection to downstream waters of the U.S. Under the 2020 rule, dry tributaries were never jurisdictional.
Due to the numerous waters that received exemptions from this rule, many environmentalists pushed for a more specific and extensive definition for WOTUS. As the regulation shifted from this 2020 definition to the current WOTUS interpretation, the required permits for projects changed once again.
Currently Defined Waters of the United States
The current pre-2015 interpretation defines jurisdictional waters of the U.S. as:
All waters currently used, or were used in the past, or could be susceptible to use in interstate or foreign commerce, including traditional navigable waters, which are waterbodies subject to the tide's ebb and flow
Interstate waters, regardless of navigability, including interstate wetlands
Other waters: The use, degradation, or destruction of other waters such as intrastate lakes, rivers, streams (including intermittent streams), which could affect interstate or foreign commerce, including any such waters
Tributaries that flow into navigable waters. Features such as ephemeral streams can qualify for this federal protection if they have a "significant nexus."
The territorial sea;
Wetlands adjacent to other waters that contribute to surface water flow (other than waters that are themselves a wetland)
Waste treatment systems designed to meet the requirements of CWA are not waters of the United States.
This confusion over what water resources are protected has led to frustration amongst developers regarding what permits apply to their project site. Discussion for an updated definition of jurisdictional waters of the U.S. began in 2021 and has increased in necessity as developments from the Infrastructure Bill are on the horizon. A final rule will be established for WOTUS, providing a concrete definition of these waters. The Biden Administration held forums during 2021 to base the new rule for defining WOTUS off of expert research and public comments.
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Significance of Waters of the United States
The defined Waters of the United States serve as the basis for federal, state, and local regulation. A diverse range of regions and water features occur across the United States. Due to this, state and local create rules according to the federal definition for WOTUS. If the defined waters do not include waters vital to a specific state or region, these local governments can add additional protections for these waters. For example, ephemeral streams were not protected under the 2020 definition for Waters of the United States, leading many states with stream-dependent, arid climates to add additional laws.
How Can Waters of the United States Impact Developers
Protected waters require proper permitting and development steps to avoid environmental impacts. These waters can add extra costs and time to a project timeline, limiting project success. Knowing if there is water under CWA jurisdiction on a project step is just the first of many steps in proper environmental due diligence.
Additionally, protected waters can be challenging to identify. Many of them, ephemeral streams, are only present on a project site after precipitation. This temporary nature is why we refer to them as Ghost Waters. When Ghost Waters are present, many levels of regulations can apply to the project site. Proper identification of temporary waters is crucial to the success of a project.
Proper environmental due diligence during site selection and early stages of development can save land developers project delays and uncertainty. Many of these setbacks can be mitigated or avoided by practicing environmental compliance.
How to Identify Waters of the United States
Environmental consultants are experts in biology and the environmental permitting process. These individuals evaluate a site for environmental risk, writing an environmental report over weeks or months. These experts can determine if a water body is under clean water act protection or subject to other regulations. Consultants can provide developers with permit requirements and next steps.
National Hydrography Dataset
This data depicts the nation's water drainage network. Software platforms use this data, which is available for download by the public. As the USFWS source, this tool does not outline permits needed, the jurisdiction of waters, and other regulations. Though these diligence tools are helpful, one of the easiest ways to identify a wetland is to use environmental due diligence software like Transect.
Transect Waters Mapping Tool
Transect uses machine learning and integrated datasets, such as the National Hydrography Dataset, to automate the mapping of WOTUS. This dataset can locate groundwater and surface water concerns in a region. This software uses prior and current data about water locations to assess a specified region. The software provides the area and likelihood of regulated water appearing on a site, the jurisdiction of the water, and includes a corresponding confidence level in its occurrence. Additionally, Transect will also provide a site-specific list of permits and next steps required to comply with federal, state, and local laws. This mapping tool can aid in selecting the right site for a project by generating this report in minutes. Transect reports can be downloaded as a PDF to share with team members and stakeholders to keep everyone in the know about environmental risks. Should a new definition of WOTUS or supreme court decisions regarding regulations change permitting requirements, Transect data will stay updated to keep developers on track for their projects.