WOTUS (Waters of the US) is the on-going challenge to regulate water pollution — the EPA (Environmental Protection Agency) and Army Corp of Engineers have been tasked with this challenge. The original Rivers & Harbors Appropriation Act of 1899 protected navigation and protected some waters from discharge of pollution. In 1948, the Federal Water Pollution Act called for programs eliminating or reducing the pollution of interstate waters and tributaries thereof, and improving the sanitary condition of surface and underground waters. The current Clean Water Act (CWA) was established by the Federal Water Pollution Control Act Amendments of 1972, which were substantially amended in 1977 and 1987.

In the proposed regulation by EPA, the definition of “navigable waters” and “waters of the US”, together with what constitutes a “significant nexus” or connectivity to navigable waters are issues.  In addition, legislation failed on two attempts to pass an update of the Clean Water Act to include not only “navigable waters”, but “all waters of the US”; the EPA and Corps of Engineers are now trying to pass this proposal through regulatory means instead.  There are many groups and individuals who support the EPA’s regulatory update to “all” waters, while many other groups oppose this regulatory update.  On September 9, 2014, the House voted 262-152 to pass HR 5078, the “Waters of the US”, Regulatory Overreach Protection Act.  This bill would prevent the EPA from moving forward with the CWA (Clean Water Act) proposed rule.  It is felt to be unlikely the Senate will take up this bill before the November elections.

The CWA proposes to reduce the amount of scientific analysis needed in order to declare a “water of the US”, including wetlands on private property across the country. Currently, before declaring a “water of the US”, the agencies must first conduct a “significant nexus” analysis for each stream or wetland to determine that regulation could prevent significant pollution from reaching an ocean, lake or river that is “navigable”, the focus of the CWA. What EPA and the Corps are proposing to satisfy this time-consuming and/or costly process is to satisfy this requirement with a more generic and less resource-intensive synthesis of academic research showing “connectivity” between streams, wetlands and downstream water bodies. On this basis, the agencies believe that they can waive the full analysis before regulating most streams and wetlands, and reduce the analysis for any “other water” that has more than a “speculative or insubstantial” impact.

The proposed regulation in Waters of the US creates two new categories of water:  1) all tributaries, and 2) adjacent waters.  The items in Column B (analysis required for regulation) move in the proposed CWA to Column A (regulated without site specific data and analysis).

Currently, EPA and the Corps may not regulate most waters of the US without first showing a “significant nexus” to an ocean, lake or river that is navigable, the focus of the CWA (Clean Water Act).  “Significant nexus” is a policy and legal determination based on a scientific site-specific investigation, data collection and analysis of factors including soil, plants, and hydrology.   The new proposal waives the site-specific, data-based analysis before regulating land use on or near most streams and wetlands in the United States.  Agency staff, then, would only need to indicate more than a “speculative or insubstantial” impact to navigable water.  For example, if there were many wetlands within the watershed of a major river, no further analysis would be required to categorically regulate land use within any particular wetland with that river’s watershed.  Also, the data and analysis from already regulated water bodies could be used to justify jurisdiction over any other “similarly situated” water without first having to visit the site and collect some scientific data.

The National Association of REALTORS® and the REALTORS® Land Institute oppose the proposed CWA, then, as there are many questions not answered by the proposed rule:

  • What is the full range of projects that will require a federal permit?
  • What can I do on my property without first having to get a permit?
  • What do I have to do to get one of these permits?
  • What’s involved in the federal application process?
  • What information do I have to provide and when?
  •  How long will the permit application take?
  • How will my project and application be evaluated?
  • What are the yardsticks for avoiding or minimizing wetland loss?
  • What are the full set of permit requirements and conditions?
  • Are there changes I can make in advance to my project and increase my chances of approval?
  • Can I be forced to redesign my home project?
  • What kinds of redesigns could be considered?
  • What if I disagree with the agency’s decision; can I appeal?
  • What exactly is involved in that appeal?
  • What do I have to prove in order to win?
  • Will I need an attorney? An engineer? Who do I consult?
  • And how much will all this cost me (time, efforts, money)?

These all impact the purchase and use of a property, whether it is a home, business, farm or ranch, development land, etc. The proposed rule would make it easier, less time-consuming and less costly for the federal agencies as they will reduce data collection and the requirement to perform analysis to justify regulation for most water bodies. The new proposal shifts the burden of data collection and analysis to property owners who do not have the expertise to do this and will create a need for the property owner to hire an engineer.

The proposed regulation, then:
  • does not delineate which improvements require a federal permit;
  • offer any reforms or improvements to bring clarity or consistency to these permit requirements, or
  • define any kind of process for property owners to appeal US water determinations based on “insubstantial” or “speculative” impacts (i.e., how to appeal wetland determinations, etc.).

This article is intended to provide some background and an update on WOTUS. As president-elect of REALTORS® Land Institute and a member of the National Association of REALTORS®, legislation and regulation that affect property rights and uses are of interest. I have tried to present some of the Association and Institute’s concerns on this issue.

by Terri L Jensen, ALC Advanced, REALTORS® | Land Institute President-Elect 2015 | Investor Relations Manager / Appraisal Manager | Farmers National Company

This article was originally published in LAND Magazine, a Lands of America print publication. Subscribe here today!


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