NAHB Provides Analysis on New EPA Water Rule

Environment
Published

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.

In general, compared to prior rules, the NWPR subjects less area to federal oversight, eliminates ambiguous tests and provides landowners with greater certainty, and focuses on conditions that are more easily observable, making it easier to implement in the field.

To help builders and developers better navigate these changes, NAHB has issued a full analysis of the NWPR.

For more information, visit nahb.org or contact Evan Branosky at 800-368-5242 x8662.

Subscribe to NAHBNow

Log in or create account to subscribe to notifications of new posts.

Log in to subscribe

Latest from NAHBNow

Economics

Sep 17, 2025

Housing Starts Remain Soft Ahead of Fed Meeting

Overall housing starts decreased 8.5% in August to a seasonally adjusted annual rate of 1.31 million units, according to a report from the U.S. Department of Housing and Urban Development and the U.S. Census Bureau.

PWB Week | Professional Women in Building Council

Sep 16, 2025

Tradeswomen Paving Their Own Way

NAHB spoke with Professional Women in Building (PWB) members Elyse Adams and Brittney Quinn about their career paths in the trades and how PWB has positively influenced their journeys.

View all

Latest Economic News

Economics

Sep 17, 2025

The Fed Cuts and Projects More Easing to Come

After a monetary policy pause that began at the start of 2025, the Federal Reserve’s monetary policy committee (FOMC) voted to reduce the short-term federal funds rate by 25 basis points at the conclusion of its September meeting. This move decreased the target federal funds rate to an upper rate of 4.25%.

Economics

Sep 17, 2025

Housing Starts Remain Soft Ahead of Fed Meeting

Challenging affordability conditions continue to act as headwinds for the housing industry, but the sector could see lower interest rates in the near future with the Federal Reserve expected to cut short-term interest rates this afternoon.

Economics

Sep 16, 2025

Builder Confidence Steady but Future Sales Expectations Hit Six-Month High

Builder sentiment levels remained unchanged in September but lower mortgage rates and expectations that the Federal Reserve will soon cut the federal funds rate led to higher future sale expectations in the coming months.