by Sally Colby

Most landowners are aware of proposed changes for Waters of the United States (WOTUS) but aren’t familiar with the details. To help ag landowners understand the proposal, several North Carolina Extension specialists discussed the proposed changes in a recent webinar.

Attorney Robert Branan, Extension assistant professor, Agricultural and Environmental Law at North Carolina State, explained the goal of the presentation was to help ag landowners understand the key points contained in the 79-page proposal.

Branan said what’s being interpreted is the Federal Water Pollution Control Act of 1972, also known the Clean Water Act (CWA). “The purpose is to ‘restore and maintain the chemical, physical and biological integrity of the nation’s waters,’” he said. “That phrase has been sliced and diced by the Supreme Court and federal courts across the land to discern whether the agencies, in writing rules that apply the statute to land use, are actually following the Congressional intent.”

While the CWA regulates the discharge of anything into WOTUS, agriculture is largely exempt because it’s considered a non-point source. “Normally, water flowing off a farm and into something that is considered WOTUS is considered a non-point source – it’s sheet flow,” said Branan. “Nonetheless, it carries things with it – all water that’s flowing off the land is carrying soil and whatever has been applied to that land, but those normal activities (pesticide applications, disturbing the soil for planting) and things that can lead to water quality degradation are not considered to be putting dirt or dredge fill into WOTUS.”

Most ag activities that lead to water leaving the farm are exempt because they’re normal farming activities. However, using a backhoe to fill a wetland or ditch is not considered normal farming activity because it no longer involves sheet flow.

The Supreme Court became involved in the 1980s as landowners pushed back on federal government’s expansion of WOTUS, primarily regarding where land ends and water begins. Justice Antonin Scalia, using Webster’s Dictionary, wrote: “(1) The phrase ‘waters of the United States’ includes only those relatively permanent, standing or continuously flowing bodies of water forming geographic features that are described in ordinary parlance as streams, oceans, rivers and lakes’ and (2) only those wetlands with a continuous surface connection to bodies that are ‘waters of the United States.’”

“Justice Scalia said wetlands are only going to be considered WOTUS if they have a continuous surface connection,” said Branan. “Justice Kennedy said it wasn’t that simple – the Clean Water Act is using the terms chemical, physical, biological integrity of covered waters. Justice Scalia is saying ‘let’s use common sense’ and Kennedy is saying ‘the act requires more than that, it requires science.’”

North Carolina has many isolated wetlands, some in mountain bogs and others in eastern bay areas. The most common wetlands in and around North Carolina include the Carolina and Delmarva bays and pocosins (Eastern Algonquian for “swamp on a hill”). These features become important for court interpretation.

“This definition hits landowners here,” said Branan. “The way I picture Justice Kennedy writing in the context of a pocosin wetland is maybe there’s a land feature that has a number of pocosins that don’t have the surface connection to a tributary but working together, they slow sheet flow or have a hydrologic link to protecting the water quality of the next water body, or down drainage [and] that’s going to definitely be considered WOTUS – waters that function together.”

By 2020, the EPA and the Army Corps of Engineers put in place the Navigable Water Protection Rule (NWPR). Branan said the term “navigable waters” was added back to emphasize the point “let’s keep this to water that is there, not something that might catch water and dry up.”

Dr. Chad Poole, assistant professor and Extension specialist, Department of Biological and Ag Engineering at NCSU, noted that the 2020 NWPR excludes ephemeral streams; groundwater (including drainage through subsurface drainage systems); stormwater runoff; ditches that are not traditional navigable water or not originally built in a tributary or adjacent wetland; tributaries not constructed in adjacent wetlands; prior converted croplands; artificially irrigated areas; artificial lakes and ponds; water-filled depressions in uplands; non-jurisdictional mining or construction activities; pits for fill, gravel, sand in uplands; and waste treatment systems.

The proposed WOTUS rules include defining ephemeral streams with the “significant nexus standard” – establishing a scientific connection between smaller water bodies and larger, more navigable waters. Water features with connections can include confined surface or subsurface connections (channels, pipes, culverts), unconfined surface connections, shallow subsurface connections, biological connections or spillage.

Poole explained that a rule has significant nexus if “either alone or in combination with similar situated wetlands in the region, the combination of the individual piece or multiple pieces can, if they affect the chemical, physical and biological integrity of other covered waters more readily understood as navigable, will be jurisdictional.” “In other words, any component that would affect the chemical, physical or biological integrity of an upstream parcel in an isolated area that can be scientifically proven would satisfy the significant nexus standard,” he said.  “‘Relatively permanent’ will be the same as what it was under the NWPR – they had to have a specified service water connection.”

Ephemeral streams (with water flowing only during and for a short duration after precipitation) were not formerly protected but would be protected with the rule change. “An ephemeral stream, which will be regulated or proposed to be regulated depending on public comment, is a stream that is above the water table but when precipitation occurs, flow is generated,” said Poole. “They are proposing to regulate all ephemeral streams that flow based on precipitation events.”

Poole outlined what constitutes a wetland under the 1987 Corps of Engineers, noting that some of the changes in the proposed rule will affect landowners. A wetland must meet three fundamental characteristics: prevalence of hydrophytic vegetation; hydric soils; and wetland hydrology – an area inundated or saturated by surface or groundwater at a frequency and duration sufficient to support a prevalence of hydrophytic vegetation typically adapted for life and saturated soil conditions.

Ditches are commonly discussed in relation to WOTUS, but Poole said ditches, including roadside ditches excavated wholly and draining only uplands and not carrying a relatively permanent flow of water, are generally not considered WOTUS. “Agencies would typically assess a ditch’s jurisdictional status based on whether or not it could be considered a tributary,” he said.

The entire proposal can be found online in the Federal Register and then using the search function to locate the revised WOTUS document. Public comments will be accepted until Feb. 7.