Being in the environmental field, I have delineated wetland and waterway boundaries for hundreds of projects across multiple states. An issue I have as an expert in the field is determining and describing when and where a wetland and waterway are regulated wetlands and waterways.
Background
The “definition” of a wetland and/or waterway varies depending on what level of government you are talking with. We live in a federalist country, which means that first and foremost there is a federal government with a shared set of rules. These rules are the baseline. Then, each state has the ability to also regulate and define what a wetland and waterway is within their state.
The federal government regulates wetlands and waterways through the Clean Water Act (CWA) of 1972. The CWA regulates surface waters (a.k.a. waters of the United States, or WOTUS) that are filled, altered, or activities that will have a result of degradation of water quality standards.
The definition of WOTUS has been heavily challenged over the lifetime of the CWA, and of late has gone through multiple versions since 2015. Issues with the definition generally include scientists asking for more biologically based decision making, landowners worried about private property rights, and the general public asking for a rigid boundary to assist with clarity of what a WOTUS actually is.
Through multiple recent rules, repeals and lawsuits, we are almost at a new rule effective date. On December 30, 2022, the Environmental Protection Agency and the United States Army Corps of Engineers announced the final “Revised Definition of ‘Waters of the United States’” rule. This new rule will be effective on March 20, 2023.
The following is an overview summary of similarities, changes, and how to move forward.
Revised definition of ‘waters of the united states’
After all of this back and forth, and there has been A LOT, the result was to go back to the pre-2015 rules, also known as the Rapanos decision (Rapanos v. U.S., 547 U.S. 715 (2006)). What this means is that the new rule codifies the Relatively Permanent Standard and the Significant Nexus Standard.
New introductions to the rule include defining “adjacent” to match regulations that have been in place for decades, and “significantly affect” which means “a material influence on the chemical, physical, or biological integrity of” traditional navigable waters. Additionally, it codifies a variety of WOTUS exclusions.
The rule is split into three sections: Jurisdictional Waters, Exclusions, and Definitions.
section 1: There are five categories of jurisdictional waters
Traditional Navigable Waters (TNWs): Traditional navigable waters that are, were, or could be used for interstate or foreign commerce, to include: waters that are subject to ebb and flow of tide; the territorial seas; and interstate waters including interstate wetlands.
Impoundments: Impoundments of WOTUS, except for impoundments of waters that fall under the fifth category.
Tributaries: Tributaries of TNWs or impoundments that are either: relatively permanent, standing or continuously flowing bodies of water; or that alone or in combination with similarly situated waters in the region significantly affect the chemical, physical, or biological integrity of TNWs.
Adjacent Wetlands: Wetlands adjacent to any of the following: traditional navigable waters; a relatively permanent, standing or continuously flowing impoundment or tributary; an impoundment or tributary if the wetland either alone or in combination with similarly situated waters in the region significantly affect the chemical, physical, or biological integrity of a TNW.
Jurisdictional Interstate Waters: Interstate lakes and ponds, streams, or wetlands that do not meet any of the previous categories provided the water is either relatively permanent, standing or continuously flowing and shares a surface connection with a TNW, impoundment, or tributary; or on its own or in combination with similarly-situated waters in the region significantly affect the chemical, physical, or biological integrity of a TNW.
section 2: exclusions
Many of the exclusions that have been excluded have been included in previous WOTUS definitions. There are no substantial changes to the changes in exclusions. Key exclusions that were maintained are prior converted cropland and ditches that do not carry relatively permanent flow.
SECTION 3: Definitions
Important definitions added and codified to the 2022 rule include: significantly affect which means “a material influence on chemical, physical, or biological integrity of TNWs.” To understand “material influence” the rule also includes clarifications on “functions to be assessed” and “factors to be considered.”
Functions to be assessed include: contribution of flow; trapping, transformation, filtering, and transport of materials such as nutrients or sediment; retention and attenuation of floodwaters and runoff; modulation of temperature in TNWs; and provision of habitat and food resources for aquatic species located in TNWs.
Factors to be considered include: the distance from a TNW; hydrologic factors such as the frequency, duration, magnitude, timing, and rate of hydrologic connections; the size, density, or number of waters that are similarly situated; landscape and geomorphology; and climate variables such as temperature, rainfall, and snowpack.
All of these functions and factors result in the potential of significant affect determinations.
IMPLEMENTATION
Using the rule, to determine Federal Jurisdiction, regulated through the Environmental Protection Agency, and the United States Army Corps of Engineers, the following process will be used:
Step 1: Is the water a TNW?
Yes: Water is a WOTUS, and the analysis is complete.
No: Continue to Step 2.
Step 2: Review exclusions to the WOTUS Rule.
Applies: Water is not jurisdictional, and the analysis is complete.
Does Not Apply: Continue to Step 3.
Step 3: Assess if the water is an Impoundment, Tributary or adjacent wetland.
Yes, the water is one of the listed waters: Water is a WOTUS, and the analysis is complete.
No, the water is not one of the listed waters: Continue to Step 4.
Step 4: Assess if the water is a Jurisdictional Interstate Water.
Yes, the water is a Jurisdictional Interstate Water: Water is a WOTUS, and the analysis is complete.
No, the water is not a Jurisdictional Interstate Water: The water is not a WOTUS, analysis is complete.
About the Author
Kaley DuCoeur
ENVIRONMENTAL TEAM LEADER
Kaley DuCoeur has performed environmental assessments across multiple states to provide environmentally compliant projects. She has performed ecologically driven assessments, directed and coordinated teams performing site layout and routing, aerial mapping, surveying, design, permitting, and construction oversight through erosion and sediment control device inspections and restoration. Services she oversaw also included infrastructure management.
Her experience ranges from project sizes of hundreds of acres of earth disturbance to minimal, discrete disturbances. Since her move to Wisconsin, she has primarily focused on linear utility projects. These projects span both urban and rural settings in the renewable energy, agricultural, fiber optics, and conventional utilities markets throughout Wisconsin.
If you have questions about the updates to the Waters of the US Rule, please contact an expert with RM today.
