In a Big Splash for Housing, EPA Chief Announces New Water Rule at IBS

Environmental Protection Agency (EPA) Administrator Andrew Wheeler today announced a final, new “waters of the United States" (WOTUS) regulation at the International Builders’ Show in Las Vegas that resolves years of uncertainty over where federal jurisdiction begins and ends.

“The Navigable Waters Protection Rule is a big win for states, municipalities, builders and developers, landowners and the American public,” Wheeler said in remarks to the NAHB Leadership Council. “It will make it easier to understand where the Clean Water Act applies and, as importantly, where it does not.”

The EPA chief also noted the new water rule is good for the economy and the environment.

“It will help business owners spend less money and time making decisions about whether their waters are waters of the United States and more time running their businesses and strengthening the nation’s economy,” Wheeler said. “Our Navigable Waters Protection Rule will continue to ensure America's water protections -- among the best in the world -- remain strong, while giving states and tribes the flexibility and certainty to manage their waters in ways that best protect their natural resources and local communities.”

“NAHB commends EPA Administrator Wheeler for finalizing a new definition for the waters of the U.S. rule that will boost housing affordability by clarifying the limits of federal jurisdiction over certain ‘waterbodies,’” said NAHB Chairman Greg Ugalde. “By excluding most man-made ditches and isolated ponds on private property from federal jurisdiction, the new rule will correct the vast overreach of prior rules, restore common sense to the regulatory process, reduce project costs and maintain environmental protection of our nation’s waterways.”

The final WOTUS rule addresses many of the serious concerns that NAHB had over the Obama-era regulation enacted in 2015 by the EPA and U.S. Army Corps of Engineers (Corps) that included unprecedented expansion of federal jurisdiction that Congress did not intend or authorize. The 2015 rule regulated man-made ditches, isolated ponds and other temporary features that form in response to rainfall and exhibit few wetlands characteristics — all of which are a far cry from the “navigable waters” targeted by the Clean Water Act.

The 2015 WOTUS rule was 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 Corps repealed it and reinstated a rule that was finalized in 1986. The 1986 rule also suffered from ambiguity and was challenging to implement at development sites.

The final rule announced today replaces the 1986 rule and narrows the extent of federal jurisdiction by excluding isolated water bodies, “ephemeral” waters that only form in response to rain, and most ditches. This means that builders and developers should require fewer Clean Water Act permits. It will also allow many builders and developers to determine for themselves whether they will need federal permits for construction activities.

Moreover, the new WOTUS rule respects states’ rights and maintains the strong protections of the Clean Water Act by clarifying which level of government oversees which body of water.

"After today, my hope is that home builders and land developers across the country can refocus on building communities instead of meeting with lawyers," Wheeler said.

For more information, visit nahb.org/wotus.