New WOTUS Rule Becomes Effective Today

The “Navigable Waters Protection Rule” (NWPR), which is the Trump Administration’s new definition of “waters of the United States” (WOTUS), becomes effective today in every state except Colorado.

Implementation begins after Judge Joseph Seeborg of the Northern District of California denied a request last Friday from 17 states, the North Carolina Department of Environmental Quality, the District of Columbia, and the City of New York to issue a preliminary injunction and block the rule nationwide.

Hours later, a district court judge in Colorado issued a preliminary injunction solely in the state of Colorado, which is considering establishing its own wetland permitting program. NAHB had moved to intervene in both of these cases before the decisions were issued.

The NWPR will provide several benefits to builders and developers while continuing to protect important water bodies. For example, it encompasses traditional navigable waters and territorial seas, which Congress clearly intended for federal oversight. However, it also narrows the extent of federal jurisdiction by excluding isolated water bodies, “ephemeral” waters that form only in response to rain, and most ditches. As a result, fewer residential construction projects will trigger federal permitting requirements.

As the rule becomes effective, NAHB is working with the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers to ensure that builders and developers realize its potential benefits. On June 19, NAHB and other industry trade associations met virtually with EPA Assistant Administrator for the Office of Water Dave Ross, Principal Deputy Assistant Secretary of the Army (Civil Works) Ryan Fisher, and other senior political and career agency employees to discuss issues related to the rule implementation. The discussion covered issues such as how to distinguish an excluded ephemeral feature from a jurisdictional intermittent feature, identify adjacent wetlands, and apply the new definition of "uplands" that applies to features lacking all three wetland factors (i.e., plants, soils, hydrology). The meeting marked the beginning of an ongoing dialogue.

Visit nahb.org/wotus for updated resources, including an analysis of the new rule, a video on its implementation, and a PowerPoint presentation that describes its key features and changes compared to prior rules.

NAHB staff is available for presentations or technical assistance. For more information, please contact Michael Mittelholzer at [email protected].