An excessively broad definition of “waters of the U.S.” (WOTUS) slowed and restricted new development for years, needlessly driving up housing costs.
That’s why home builders were pleased when EPA Administrator Andrew Wheeler took the stage during the International Builders’ Show in Las Vegas to announce a final rule that resolves decades of uncertainty over where federal jurisdiction on U.S. waterways begins and ends. Wheeler noted that the new “Navigable Waters Protection Rule” is good for the economy and the environment.
NAHB has advocated for years for a clearer, more sensible definition of WOTUS. Existing rules added years and, in some cases, hundreds of thousands of dollars to the home building process.
The new rule builds upon President Donald Trump’s promise to rescind the 2015 WOTUS ruling, one that vastly expanded federal overreach regarding water and land use by regulating man-made ditches and isolated ponds on private property. The rule had also been 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 In September 2019, EPA and the Army Corps of Engineers repealed it and reinstated a rule that had been finalized in 1986. The 1986 rule also suffered from ambiguity and was challenging to implement at varying development sites.
Now, for the first time, EPA and the Corps recognize the difference between federally protected waters and state-protected waters. The new rule adheres to the statutory limits of the agencies’ authority. It also ensures that America’s water protections—among the best in the world—remain strong, while giving states the certainty to manage their land and water in ways that protect both their natural resources and their local economies.
The revised definition identifies four categories of waters that are federally regulated under the Clean Water Act: territorial seas and traditional navigable waters; perennial and intermittent tributaries; certain lakes, ponds, and impoundments; and wetlands that are adjacent to jurisdictional waters. These categories protect the nation’s navigable waters and the core tributary systems that flow into those waters.
With the new rule now finalized, builders and developers will be better able to determine for themselves whether they will need federal permits for construction activities.
The new rule replaces the 1986 rule and narrows the extent of federal jurisdiction by excluding isolated water bodies, most ditches, and “ephemeral” waters that only form in response to rain. As a result of the new rule excluding these features, builders and developers should now require fewer federal wetlands permits under the Clean Water Act.
The new rule is a win for the home building industry, but the work is not finished. We will continue to work with the Trump administration and Congress to implement the new WOTUS rule and overcome more regulatory hurdles that harm our industry and drive up housing costs.
