What are “Waters of the State”?

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“Waters of the State” is the term for water resources that are regulated under Tennessee law. Understanding waters of the state can help you identify which waters are regulated or not.

“WOTS” Defined

The Tennessee Water Quality Control Act of 1971 declared that the waters of Tennessee are “held in public trust for the use of the people of the state” and that Tennesseans have the right for those waters to be unpolluted (Tenn. Code Ann. § 69-3-102). These water resources are called “Waters of the State” or “WOTS” for short.

Waters is legally defined as follows:

“any and all water, public or private, on or beneath the surface of the ground, that are contained within, flow through, or border upon Tennessee or any portion thereof, except those bodies of water confined to and retained within the limits of private property in single ownership that do not combine or effect a junction with natural surface or underground waters.”

Any & All, Except

By this definition, almost all waters in Tennessee are “jurisdictional.”
 
Waters of the state include any and all water resources geographically located in Tennessee. This includes not only waters which completely exist within the state, like some ponds and wetlands, but also any waters flowing through or touching the borders of the state, such as the Tennessee River or Slickrock Creek (TN06010204046_1000) on the Tennessee-North Carolina state line.

The definition further clarifies which waters are included on the basis of ownership and position on the landscape within the hydrologic cycle.

Ownership

The definition part “public or private” indicates that the type of ownership, on its own, does not affect whether or not waters are WOTS. Water resources occurring either on property owned privately by individuals or entities or publicly by a government (federal, state, county, or city) can all be waters of the state.

Surface vs. Groundwater

The part of the definition, “on or beneath the surface of the ground” refers to a water resource’s location within the hydrologic cycle. This cycle, often taught as the “water cycle” in science classes, is the process of water moving from the air, to the surface of the ground, and into either a large collection area or back into the air. Within that cycle, there are multiple possible locations where we might observe water. Moisture in the air gathers into clouds and falls to the surface of the ground as precipitation. Precipitation hits the ground and either percolates into the soil or runs across the ground in either a sheet or channelized drainage pattern. Flowing water drains into large collection areas called “sinks” like the oceans or underground aquifers.

Within this process, there are many different kinds of commonly occurring water resources both above and below the ground. The resources above ground are called “surface waters”, and those below ground are called “ground waters.”  Examples of surface waters are streams, rivers, and reservoirs. Whereas examples of ground waters include springs, seeps, underground streams, and aquifers.

In Tennessee, we have both surface and groundwaters and even some resources, such as wetlands, which develop at the interface of the two types of waters and can be one or the other or both classifications. Waters of the state specifically include waters in either category.

Except

So which waters are excluded from jurisdiction? The definition states “except those bodies of water confined to and retained within the limits of private property in single ownership that do not combine or effect a junction with natural surface or underground waters.” This exception is a two-part check. If both conditions are met, then the water resource may be excluded. Resources which meet only part of this definition cannot be excluded from WOTS based on this part.

Within Private Property Held in Single-Ownership

Earlier we noted that private ownership isn’t basis to exclude a water resource from WOTS. What’s the difference here? Ownership type, on its own, does not exclude a resource from WOTS. However, in combination with the other two checks of this exclusion, it can be.

Note the definition says “confined to and retained within the limits of private property in single ownership.” This means the water resource is wholly and completely on private property owned by one individual or private entity. If the resource crosses property lines into someone else’s property or into public property, it cannot be excepted under this clause.

However, TDEC guidance states that if the resource crosses property lines but all the properties which it exists on are owned by the same single individual or entity, then the resource is still eligible for exception from WOTS (DWR-NR-G-05-Waters of the State Exception Clause-11/3/2020).

No Junction

The second part of the exception clause reads “that do not combine or effect a junction with natural surface or underground waters.”

This means that the water resource cannot connect with other natural water resources, whether on the surface or underground. “Natural” waters can be streams, rivers, ponds, reservoirs/impoundments, wetlands, springs, and wet weather conveyances (DWR-NR-G-05-Waters of the State Exception Clause-11/3/2020). Generally, it’s any water resource or feature which forms naturally as a result of the water cycle.

What then are non-natural waters? Stormwater flow over land is not a natural surface water feature, which refers to the water flowing in sheets across the ground during and after precipitation. Additionally, any constructed or artificial water feature which was not built in waters or connected to groundwater.

The emphasis here is the disconnection—a constructed water resource built in connection to or by diverting from a natural water resource is considered a natural water. This is why impoundments and reservoirs are considered natural waters. The natural water feature was there before the constructed feature.

However, features constructed in uplands (a.k.a. not wetlands or floodplains where water naturally drains) and apart from any natural waters are considered non-natural. This includes ponds, water treatment or stormwater control structures, and basins.

For more details about what TDEC considers a junction to natural waters, see the guidance document linked below.

A Note on Exemptions from Permitting

Several types of waters of the state are identified in law and rule which are exempted from permitting requirements. This is not the same thing as being excluded from waters of the state, but both types of exemption can result TDEC not requiring permitting.

How Do You Know

The law describes theoretically discreet categories for which resources are “in” or “out” of jurisdiction. In other words, the law draws lines between “in” or “out” that sound clear on-paper but are artificial and not as obvious in real life. It is a lot like drawing political boundary lines. When you cross a county, city, or state line, you often can’t see that boundary if it isn’t marked with a sign or fence.

In the same way, when you when you’re standing on a property and looking at water resources in real life, it can be a lot less obvious whether or not the resource should be considered WOTS.

For this reason, the TDEC follows consistent, science-based methods for each type of resource to determine if something is “in” or “out” according to Tennessee law. These “jurisdictional determinations” indicate whether something is WOTS, and further documentation and coordination with TDEC may be necessary to verify an exemption status.

Want to know more?

If you’re considering a project that might involve WOTS, you’ll need to get any required permits before you start work. TN Environmental is here to help you navigate the process with clarity and confidence.

For more information about the ARAP program, check out our ARAP resources page here. We’ll cover more helpful topics in future blog posts, so stay tuned. If you join our email list here, we’ll send updates about new posts and resources straight to your inbox, starting with your free copy of our 17-page guide to jurisdictional determinations.

Have specific questions? Contact us! We are happy to discuss your property or project and can book an on-site consultation or a consultation call to start tackling your proposal.

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