Waters of the U.S.

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Contacts: Thomas Ward
tward@nahb.org
(202) 266-8230

Michael Mittelholzer
mmittelholzer@nahb.org
(202) 266-8660

The Clean Water Act (CWA) makes it unlawful for a person to add pollutants or dredge or fill material into a “water of the United States” (WOTUS) without a permit.

Since 1972, determining which water bodies are waters of the United States has been the subject of federal agency regulations, guidance and numerous cases both at the U.S. Supreme Court and at the lower federal courts.

Navigable Waters Protection Rule

The “Navigable Waters Protection Rule” (NWPR) was put into effect June 22, 2020. A temporary administrative stay granted to Colorado was lifted by the U.S. Court of Appeals for the Tenth Circuit on March 2, 2021; since then, the WOTUS definition, as finalized under NWPR, applied nationwide.

On Aug. 31, 2021, the U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (hereafter referred to as the Agencies) issued a statement saying the Agencies would immediately halt implementation of the NWPR in response to an order vacating and remanding the Clean Water Act’s regulatory definition of “waters of the U.S.” (WOTUS) under the NWPR as a result of a ruling by the U.S. District Court for the District of Arizona under the case of Pascua Yaqui Tribe v. U.S. Environmental Protection Agency.

The Agencies had already announced their intention back on June 9, 2021, to propose a new WOTUS regulatory definition following a two-step federal rulemaking process. The importance to NAHB’s membership of that two-step federal rulemaking process was the NWPR’s definition of WOTUS was to remain in effect. However, the Agencies’ announcement on Aug. 31, 2021, means applicants seeking either approved jurisdictional determinations (AJDs), or subsequent nationwide wetlands permits from the Corps are immediately subject to a WOTUS regulatory definition and corresponding regulatory guidance what was in place prior to 2015.

Finally, on Jan. 5, 2022, the Agencies released a joint statement claiming that because U.S. District Court for the District of Arizona’s vacatur ruling of the NWPR, the Agencies would no longer honor any approved jurisdictional determinations (AJDs) issued under the NWPR during the subsequent federal wetlands permitting process. Instead, landowners with AJDs issued during the applicability of the NWPR must request a new jurisdictional determination (JD) from the Corps before seeking a required federal wetlands permit. The Agencies’ Jan. 5 joint statement directly reverses prior Agency guidance that stated determinations under final AJD are good for a period of not less than five years.

On Dec. 7, 2021, the Agencies jointly published a proposed rule that rescinds the regulatory definition of WOTUS as finalized by the Trump administration under the NWPR. Under the proposed rule, the Agencies would replace the Trump administration’s WOTUS regulatory definition with a new WOTUS definition that the Biden administration believes is consistent with the Agencies’ jurisdictional practices prior to the Obama administration’s 2015 WOTUS rule and consistent with prior U.S. Supreme Court rulings. However, the proposed WOTUS definition would expand federal jurisdiction by eliminating the NWPR’s automatic categorical exemptions from federal jurisdictional for most isolated wetlands and all ephemeral features (e.g., wetlands, streams, and ditches). Instead, under the proposed rule the Corps could assert federal jurisdiction over potentially any non-navigable, isolated, or intermittent adjacent wetland, pond, lake, tributary, or ditch using either a “relatively permanent” or “significant nexus” standard.

On Jan. 24, 2022 the U.S. Supreme Court agreed to rehear a challenge by an Idaho landowner on whether the “significant nexus” test — established by the Supreme Court back in 2006 following the Rapanos ruling and relied upon by the Biden administration under the recently proposed WOTUS rule — is in fact legal under the CWA.

The following posts on NAHBNow highlight the case and activity surrounding it:

NAHB Senior Officers have been actively testifying on the impact these rule changes have on the home-building industry, and will be providing feedback again soon at the EPA’s upcoming regional roundtables.

Builders who have received or are in the process of applying for federal wetlands permits or jurisdictional determinations can access NAHB’s guidance to frequently asked questions to help navigate the current landscape.

NAHB believes the NWPR provides many benefits to builders and developers. For example, it exempts ephemeral features that form only in response to rainfall, eliminates ambiguous tests to determine jurisdiction, and removes many isolated features from federal jurisdiction. As a result, builders and developers should require fewer federal wetland permits and have greater ability to determine their permitting needs for themselves.

Why It Matters

When home builders need to add fill material into a water of the United States, they must first get a permit from the Corps. Obtaining permits is costly and time consuming. For example, one study found that it costs on average $270,000 and takes 788 days to obtain an individual CWA fill permit.

As the EPA and Corps expanded the definition of “waters of the United States,” builders needed to obtain additional or more onerous permits, spending more time and resources to avoid wet features — this has been made all the more difficult because existing regulations do not clearly define which features to avoid.

For the latest WOTUS information, visit NAHBNow.

WOTUS FAQs Builders who have received or are in the process of applying for federal wetlands permits or jurisdictional determinations can access NAHB’s guidance to frequently asked questions to help navigate the current landscape.
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