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.

EPA Repeals Controversial 2015 Rule

On Sept. 12, 2019, the Environmental Protection Agency (EPA) rescinded the controversial 2015 WOTUS rule that went so far as to regulate man-made ditches and isolated ponds on private property.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 has been 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. The EPA decision means the 1986 rule will now be in effect in nationwide until a final replacement rule is issued.

Proposed New WOTUS Rule

The Trump administration has proposed a new WOTUS rule that NAHB generally supports. The proposed rule would clarify the extent of federal oversight and correct the vast overreach of prior rules. Once finalized, builders and developers will be better able to determine for themselves whether they will need federal permits for construction activities.

The proposed rule provides needed clarity by excluding “emphemeral features” that form only in response to rainfall. The comment period for the proposed rule closed on April 15, 2019.

NAHB, state and local associations, and members worked extensively with the EPA and Corps of Engineers (Corps) during the comment period to provide feedback for the final rule. We will continue to monitor the administration’s progress in finalizing the rule and keep members informed of important developments.

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.

Solutions

  • The EPA and Corps should move quickly to end regulatory uncertainty by rescinding the 2015 rule and replacing it with the newly proposed definition.

For the latest WOTUS information, visit NAHBNow.

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