Waters of the U.S.

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Contacts: Evan Branosky
(202) 266-8662
ebranosky@nahb.org

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

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 Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (USACE) announced a new WOTUS rule on Jan. 23, 2020 at the NAHB International Builders' Show in Las Vegas. The "Navigable Waters Protection Rule" clarifies the extent of federal oversight and corrects the vast overreach of prior rules. Specifically, it exempts ephemeral features that form only in response to rainfall and eliminates ambiguous tests to determine jurisdiction. As a result, builders and developers should require fewer federal weland permits and have greater ability to determine their permitting needs for themselves. 

The new rule will take effect 60 days after publication in the Federal Register. It will apply across the country unless litigation and court decisions affect implementation.

EPA Repeals Controversial 2015 Rule

On Sept. 12, 2019, the EPA rescinded the controversial 2015 WOTUS rule that went so far as to regulate man-made ditches and isolated ponds on private property. The 2015 rule was subject to several legal challenges that halted its implementation nationwide. Prior to EPA’s repeal announcement, the Obama-era rule was in effect in 22 states and the District of Columbia, and the previous regulations issued in 1986 were in effect in the remaining 28 states.

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.

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