Here’s What to Know About WOTUS
What counts as a federally regulated body of water in the United States? That’s the question that WOTUS, or “waters of the U.S.” seeks to define—and there’s been quite a lot of debate over the years on exactly how to do that.
So, why should you care? If you’re a landowner, developer, or farmer, regulations around WOTUS put restrictions on what you can and cannot do with certain bodies of water on your property. It also gives the federal government the final say in any environmental decisions concerning those bodies. There are certainly positives to this in terms of ecological protections, but it’s important to know what is and isn’t WOTUS and how it will impact your land use.
A timeline of WOTUS
New changes might be coming to WOTUS this year. And to put them into context, it helps to see how—and why—the term has changed over the years.
– The first mention of the term “waters of the U.S” appeared in the federal Clean Water Act of 1972, which tasked the Environmental Protection Agency (EPA) and the Army Corps of Engineers with the responsibility of overseeing and protecting these federally run bodies of water. At the time, little detail was provided about what actually constituted WOTUS, with the act giving the regulating agencies discrepancy over how to define it.
– Regulatory texts were introduced to help better define WOTUS following three 1985 Supreme Court cases revolving around the issue. Under the texts, WOTUS was better defined to include all interstate and intrastate water used for interstate or foreign commerce and/or industrial purposes, as well as impounded waters, the territorial sea, and a few others. You can see the full scope of the 1986/1988 changes here.
– A 2006 Supreme Court case once again challenged the interpretation of WOTUS, leading to additional changes to the definition by its regulating agencies in 2007 and 2008.
– A new Clean Water Rule expanded the scope of federal regulation over waterways while narrowing down the number of WOTUS bodies subject to case-by-case analyses by the regulating agencies. It also gave state, local, and tribal governing bodies authorization to handle the implementation of certain WOTUS-related EPA programs, such as the National Pollutant Discharge Elimination System (NPDES) permit program.
– The Clean Water Rule was rescinded, and the regulations set out in the 1986/1988 texts were reinstated, with changes encompassing the subsequent Supreme Court rulings. Known as the Navigable Waters Protection Rule (NWPR), this change served to weaken regulating agencies’ ability to control pollution in certain bodies such as wetlands and streams.
– New rules have been proposed to WOTUS—namely a reversal of the NWPR and reinstatement of the Clean Water Rule.
Why does this all matter?
It may look like just a lot of legal back and forth, but the definition of WOTUS matters a lot if you’re someone who owns land with water that could fall under its scope. How WOTUS is defined—and the rules around it—impacts building projects, draining projects, and any other major alterations. It also gives the government final say on what can be done with those waters.
Have an opinion on the proposed changes? The EPA and Department of the Army are seeking comments and you can learn more by visiting the Realtors Land Institute website.
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