NAHB Provides Analysis on New EPA Water Rule
The Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) announced a new "waters of the United States" (WOTUS) regulation on Jan. 23, at the International Builders' Show in Las Vegas. The new regulation, the Navigable Waters Protection Rule (NWPR), redefines the federal definition of WOTUS under the Clean Water Act (CWA). The NWPR addresses many of the concerns NAHB had with prior rules, including uncertainty over where federal jurisdiction begins and ends. Improvements compared to the prior rule include:
- Eliminates "significant nexus" test: The onerous significant nexus test is no longer relevant due to the NWPR’s focus on features that maintain a surface connection to traditional navigable waters.
- Encompasses fewer adjacent wetlands: Because the NWPR only asserts federal authority over wetlands that have a surface connection to other jurisdictional waters in a typical year, it does not encompass the “neighboring” and “similarly situated” waters covered by the 2015 rule.
- Excludes ephemeral waters: The NWPR does not extend federal jurisdiction to waters that form only in response to rainfall. The 2015 rule included many ephemeral features.
- Narrows federal jurisdiction over tributaries: Because the NWPR requires tributaries to maintain intermittent or perennial flow, it does not depend on physical observations of "bed and banks and an ordinary high-water mark" that could form during ephemeral flow and last long after that flow ceased. Such physical features established jurisdiction under the 2015 rule.
- Excludes more ditches: The NWPR excludes all ditches unless they satisfy the conditions of a traditional navigable water or tributary. In comparison, the 2015 rule regulated all ditches unless they met narrow exemptions.