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.

What does WOTUS encompass?

• 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?

• 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?

• 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.