NAHB Weighs In on New WOTUS Rule

In November, the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) announced a proposed updated definition of “waters of the United States” (WOTUS), followed by a 45-day comment period to gather input on the proposed rule.

To solicit feedback, EPA and the Corps hosted three public engagement opportunities between Dec. 12 and 16 — one in Bismarck, N.D., another in Pittsburgh and a final virtual session — for speakers to share their input. NAHB members and HBA staff provided comments at each session on the following topics:

Continuous Surface Connection

By proposing a definition for “continuous surface connection,” the proposed rule is a significant improvement over the current WOTUS regulatory definition that did not define the term but instead relied upon interpretative guidance. NAHB urges the EPA and the Corps to codify the proposed “continuous surface connection” definition.

Members who provided comments:

• Joel Ingle, Home Builders Association of the Sioux Empire
• Vince Messerly, Building Industry Association of Central Ohio

Relatively Permanent

The proposed definition of “relatively permanent” includes waterbodies and wetlands that flow or have standing water during the “wet season.” Implementing the “wet season” concept is critically important to realize the benefits of the proposed rule for the development community.

Members and HBA staff who provided comments:

• Eugene Graf, Southwest Montana Building Industry Association
• Rick Wadja, Indiana Builders Association

Jurisdictional Exclusions

Clear jurisdictional exclusions give landowners certainty about which features are not federally regulated when planning development or purchasing land. The proposed rule excludes features such as ditches; wastewater treatment devices, including stormwater projects; and groundwater, which is regulated under other federal authorities. The Agencies must retain these exclusions and ensure that they are interpreted correctly in the field.

Members who provided comments:

• Don Dabbert, Building Industry Association of the Red River Valley
• Merle Stutzman, Building Industry Association of Central Ohio
• Howard Nelson, Builders Association of South Florida

Sackett Alignment

In Sackett v. Environmental Protection Agency (EPA), the Supreme Court upheld their plurality opinion from Rapanos vs. United States. In Rapanos, the Court stated that “The phrase [‘waters of the United States’] does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.”

However, the Court also recognized under the Rapanos’ plurality opinion that WOTUS “does not necessary exclude streams, rivers, lakes that dry up in extraordinary circumstances such as drought.”

NAHB believes that the proposed rule is highly aligned with the Supreme Court holdings. More expansive WOTUS interpretations are subject to litigation.

Members who provided comments:

• Hans Klinger, Home Builders Association of Richmond

EPA and the Corps will continue soliciting public comments online via Regulations.gov. The 45-day comment period closes on Jan. 5, 2026.

NAHB remains actively engaged in this rulemaking process, including encouraging letters of support by state and local government associations. Contact Evan Branosky, Senior Program Manager of Environmental Policy, at ebrа[email protected] for a template letter.