Federal Register Publishes Proposed WOTUS Rule

The Federal Register today published a proposed rule by the Environmental Protection Agency and U.S. Army Corps of Engineers to rescind the definition of “waters of the United States” (WOTUS) as finalized during the Trump administration.

The agencies had already halted implementation of the WOTUS regulatory definition as finalized under the Trump administration’s Navigable Waters Protection Rule (NWPR), and have been relying upon a regulatory definition of WOTUS based in part on regulatory guidance and the regulatory definition of WOTUS promulgated in 1986.

The proposed rule will have a 60-day comment period. If finalized as proposed, the new rule will rescind the WOTUS definition NAHB supported under the NWPR and replace it with a new WOTUS definition that includes elements of the 1986 WOTUS definition and elements of the Supreme Court’s 2006 Rapanos decision.

The agencies have also announced a series of three virtual public hearings to be held on Jan. 12, 13 and 18. NAHB members can sign-up for a brief three-minute speaking slot (scroll down to the subhead Public Hearings on the Proposed Rule) and share their views on the proposed repeal of the NWPR and replacement with the proposed WOTUS regulatory definition.

To help builders and developers understand how to move forward with ongoing or planned projects, NAHB developed FAQs to provide interim (unofficial) guidance based upon the Clean Water Act statute, existing regulatory guidance documents, and past practices by the agencies during previous instances of changing interpretations of the WOTUS regulatory definition.

You can access the WOTUS FAQs on nahb.org.