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Who Gets WOTUSed?
Do the waterbodies near where you want to either develop or expand meet the new definition of waters of the United States (WOTUS), requiring you to get a permit? Here are some things to consider.
You Need to Get a Permit if the Water …
- Is currently in use, was used at some point in the past, or will be used in the future for interstate or foreign commerce (according to WOTUS, these are traditional navigable waters)
- Flows across state boundaries or forms part of a state boundary (interstate waters)
- Is adjacent to the mean low waterline of the U.S. coast extending seaward 3 miles (territorial waters)
- Is a reservoir or dam (impoundments)
- Has physical indicators of a bed and banks, an ordinary high-water mark (OHWM), and flows into a traditional navigable water, interstate water, or territorial sea (tributaries)
- Borders, is contiguous to, or is neighboring to a traditional navigable water, interstate water, territorial sea or impoundment (adjacent waters)
Note: Here’s a good explanation of how the OHWM is determined.
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You May Need a Permit if the Water. . . .
- Is a prairie pothole, a Carolina or Delmarva bay, a pocosin (word means “swamp on a hill” —these are wetlands that have no standing water but a shallow water table leaves the soil saturated for much of the year—found from Virginia to northern Florida, but most are in North Carolina), a western vernal pool, or a Texas coastal prairie wetland
- Is within the 100-year floodplain of traditional navigable waters, interstate waters, or territorial seas
- Is within 4,000 feet of the high tide line or OHWM of traditional navigable waters, interstate waters, territorial seas, impoundments, or covered tributaries
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To determine if you need a permit for work near these waters, a case-specific significant nexus analysis must be done. A water has a significant nexus, making it a WOTUS, if it either alone or in combination with similarly situated waters in the region, significantly affects the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, or the territorial seas.