Here’s What to Know About WOTUS

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.

1972

– 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.

1986/1988

– 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.

Early 2000s

– 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.

2015

– 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.

2019

– The Clean Water Rule was rescinded, and the regulations set out in the 1986/1988 texts were reinstated, with changes encompassing the subsequent Supreme Court rulings.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.

2021

– 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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by Jeanne Roberts

The house is well-built, attractive inside and out, on a decent-sized lot, and affordably priced for its quality, size, and location. The fact that it is also located less than 100 feet from the Pacific Ocean, in sunny California, seems like a bonus factor!

The same should be true for anything along the Atlantic Coast, or along the Gulf of Mexico, but is it? A recent article in the New York Times suggests that real estate agents taking on coastal properties should first check the distance to the water before they start counting their sales commission. Because – and this is something you would never have read or even heard of a decade ago – climate change may swamp that potentially lucrative sale. Perhaps even before the ink on the contract is dry!

East Coast Hurricanes

Yes, that is (still) an exaggeration, and oceanfront properties continue to sell, but no longer like hotcakes. A house on the beach is incontestably an expensive proposition, and buyers wealthy enough to afford one are also smart enough to be aware of a changing climate.

This climate change, aka global warming, has already threatened places like Florida and North Carolina with higher storm surges and fiercer hurricanes – storms that wreak their havoc at greater and greater wind speeds. In fact, scientists calibrate this increase at about two miles per hour per decade, or six mph from 1982 to 2009.

Think six mph isn’t a very big deal? The wind speeds of a category 3 hurricane are only 14 miles faster than a category 2!

Hurricanes aside, climate change alone predicts a six-foot rise in ocean levels by the end of the century. This estimate, based on date from the National Oceanic and Atmospheric Administration (NOAA), will flood 1.87 million American homes valued at $882 billion dollars, and at least half of them are in Florida.

That’s a lot of real estate under water, and we don’t mean inflated mortgages.

West Coast Ocean Rise

Fortunately, California, Oregon and Washington don’t have hurricanes.  This is because hurricanes that form in the northern hemisphere tend to travel in a westerly direction toward the North Pole. In addition, the Pacific is a colder ocean than the Atlantic (by roughly 10 degrees Fahrenheit), and cooler water temperatures don’t provide the thermal energy needed to sustain a hurricane.

This doesn’t mean that Los Angeles, San Francisco, and Seattle are flood-proof, however, just that a rising Pacific Ocean will flood them gradually rather than catastrophically. This is like a doctor diagnosing a very slow-growing cancer. More time to prepare for the inevitable, but the end result is the same.

Sea Levels Continue To Rise

As the U.S. Environmental Protection Agency, or EPA, notes, sea level rise, after almost 2,000 years of little or no change, has been confined entirely to the 20th century. The degree of rise before 1993 was 0.06 inches per year, and has since doubled, to more than 0.118 inches (3 centimeters).

The rise is not uniform, of course. Sea level in certain areas has fallen, and regional land use patterns tend to affect levels, as do various other climactic events. The collapse of the West Antarctic ice sheet could, for example, raise Atlantic Coast levels by about 11 feet. Greenland Ice melt could double that. A large volcano could send ash for hundreds of miles, darkening the ice and slowing melting. The fact that we are now in a warming period between ice ages also comes into play, and sea levels could even go down – providing we can peg human-caused climate change and carbon dioxide levels to no more than 2 degrees Celsius.

Rising waters are also related to actual water-temperature changes (and dying coral reefs, as is currently happening).  Water expands as it warms, which means very bad news for coasts around the Atlantic Ocean – not just New York, New Jersey, Delaware and Maryland, but also parts of the United Kingdom, France, Spain, and Italy. Taking one’s real estate business, or money, overseas will not help at all, except as protection from an El Nino, which can raise Pacific Ocean surface water temperatures by five degrees or more.

Trumping Climate Change and Sea Level Rise

Enter newly elected President Donald Trump, and the very science of climate change seems to be called into question.

Trump has in fact signed an executive order that may alter, or eliminate, some of the carbon emissions’ rules on power plants, and fossil fuel production setbacks that have cut jobs in the energy industry.

However, Trump’s move may not be as dictatorial and dangerous as opponents argue. In reality, what real estate mogul Trump’s orders actually do is prohibit the EPA from “proposing, finalizing, or disseminating regulations or assessments based upon science that is not transparent or reproducible.”

On its face, the order seems like an eminently sensible approach to a hugely divisive subject, and even environmentalist do not expect an immediate assault on either it or the climate-science probe beginning in the House Science Committee on Wednesday, March 29.

Moreover, as the Economist notes, the order may have even less impact than environmentalists suggest. After all, it was never properly implemented in the first place.

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