WOTUS Update 4/18/2023
The Biden Administration’s WOTUS Rule is currently in effect. However, due to three separate legal challenges and the district court outcomes in those cases, the Administration is enjoined from enforcing the Rule in over half of the country – 26 states to be exact. These states are Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming. In all other states, the WOTUS Rule as summarized below is in full effect and being implemented.
On March 20, 2023, the Environmental Protection Agency (EPA)’s Waters of the United States (WOTUS) rule will take effect. The rule “advances the objective of the Clean Water Act (CWA) and ensures critical protections for the nation’s vital water resources, which supports public health, environmental protection, agriculture activity, and economic growth across the United States.” Beyond this, the rule will expand the EPA’s authority to regulate bodies of water.
Here is what small business owners need to be aware of with the enactment of the new WOTUS ruling.
What does WOTUS encompass?
Waters of the United States means:
- All water currently used or used in the past, or may be susceptible to use in interstate or foreign commerce;
- All interstate waters including interstate wetlands;
- All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds;
- All impoundments of waters otherwise defined as waters of the United States under this definition;
- Tributaries of waters;
- The territorial sea; and
- Wetlands adjacent to waters (other than waters that are themselves wetlands).
Are operations on my property exempt from CWA permit requirements?
Not all activities concerning discharges into water of the United States requires authorization under the CWA. Permits may be required if a person is discharging or adding a pollutant from a point source to the water of the United States. These are defined in section 502 of the Clean Water Act.
Permit exclusions include the following:
- Established and ongoing farming, ranching, and silviculture activities such as plowing, seeding and cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices’;
- Maintenance (but not construction) of drainage ditches;
- Construction and maintenance of irrigation ditches;
- Construction and maintenance of farm or stock ponds;
- Construction and maintenance of farm and forest roads, in accordance with best management practices; and
- Maintenance of structures such as dams, dikes, and levees.
Is the water on my property covered by this rule?
The new WOTUS rule has a three-factor definition to determine what is considered waters of the United States. The three factors are the presence of particular wetland hydrology, soils, and vegetation. Under this, a homeowner or business owner’s property that is temporarily flooded by a rainstorm is not considered waters of the United States.
To determine if existing water on your property falls into the jurisdiction of the Clean Water Act, you can start by evaluating the exclusions:
- Prior converted cropland;
- Ditches (including roadside ditches) excavated wholly and draining only dry land and that do not carry a relatively permanent flow of water;
- Artificially irrigated areas that would revert to dry land if the irrigation ceased;
- Artificial lakes or ponds created by excavating or diking dry land to collect and retain water and which are used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing;
- Artificial reflecting or swimming pools or other small ornamental bodies of water created by excavating or diking dry land to retain water for primarily aesthetic reasons;
- Waterfilled depressions created in dry land incidental to construction activity and pits excavated in dry land for the purpose of obtaining fill, sand, or gravel unless and until the construction or excavation operation is abandoned and the resulting body of water meets the definition of “waters of the United States”;
- Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act.
If your water feature is not covered by one of the exclusions, the next determination would be to discern if it is considered a water of the United States under the aforementioned categories that WOTUS encompasses. Extended definitions of these categories can be found in section 10 of the “Revised Definition of “Waters of the United States.”
The Supreme Court is poised to issue a decision soon in Sackett v. EPA concerning the scope of EPA’s authority under the CWA. The Court’s decision could lead to further confusion and litigation over the scope of federal jurisdiction under the CWA. NFIB filed an amicus brief in Sackett urging the Court to narrow EPA’s jurisdiction over “waters of the United States.”