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.
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.
- Read NAHB’s analysis of the Navigable Waters Protection Rule.
- Read NAHB Comments on the Trump Administration’s Proposed WOTUS Definition.
- Access NAHB’s analysis of the proposed WOTUS Definition.
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.