Environmental Protection Agency (EPA) Administrator Andrew Wheeler announced a final, new “waters of the United States” (WOTUS) regulation at the National Association of Home Builders' (NAHB) International Builders’ Show in Las Vegas that the association believes will help resolve years of uncertainty over where federal jurisdiction begins and ends.
”After decades of landowners relying on expensive attorneys to determine what water on their land may or may not fall under federal regulations, our new Navigable Waters Protection Rule strikes the proper balance between Washington and the states in managing land and water resources while protecting our nation’s navigable waters, and it does so within the authority Congress provided,” said Wheeler.
“NAHB commends EPA Administrator Wheeler for finalizing a new definition for the waters of the U.S. rule that will boost housing affordability by clarifying the limits of federal jurisdiction over certain ‘waterbodies,’” said NAHB Chairman Greg Ugalde. “By excluding most man-made ditches and isolated ponds on private property from federal jurisdiction, the new rule will correct the vast overreach of prior rules, restore common sense to the regulatory process, reduce project costs and maintain environmental protection of our nation’s waterways.”
The final WOTUS rule addresses many of the serious concerns that NAHB had over the Obama-era regulation enacted in 2015 by the EPA and U.S. Army Corps of Engineers that included unprecedented expansion of federal jurisdiction that Congress did not intend or authorize. The 2015 rule regulated man-made ditches, isolated ponds and other temporary features that form in response to rainfall and exhibit few wetlands characteristics — all of which are a far cry from the “navigable waters” targeted by the Clean Water Act.
The 2015 WOTUS rule was subject to several legal challenges that halted its implementation nationwide. For example, in August 2019 the U.S. District Court for Georgia issued a decision finding that the substance of the 2015 rule violated the Clean Water Act. In September 2019, EPA and the Corps repealed it and reinstated a rule that was finalized in 1986. The 1986 rule also suffered from ambiguity and was challenging to implement at development sites.
Today’s final rule replaces the 1986 rule and narrows the extent of federal jurisdiction by excluding isolated water bodies, “ephemeral” waters that only form in response to rain, and most ditches. This means that builders and developers should require fewer Clean Water Act permits. It will also allow many builders and developers to determine for themselves whether they will need federal permits for construction activities.
Moreover, NAHB believes the new WOTUS rule respects states’ rights and maintains the strong protections of the Clean Water Act by clarifying which level of government oversees which body of water.