The Clean Water Act makes it unlawful for a person to add pollutants to a "water of the United States" (WOTUS) without a permit.
Since 1972, determining which water bodies are waters of the United States has been the subject of federal agency regulations, guidance and numerous cases both at the U.S. Supreme Court and at the lower federal courts.
Now, roughly half of the country is subject to one set of regulations while the other half must comply with different requirements.
On Dec. 11, 2018, the Trump administration proposed a new WOTUS definition to replace the controversial 2015 rule that went so far as to regulate man-made ditches and isolated ponds on private property. EPA and the Army Corps of Engineers (Corps) are now accepting comments on the proposed rule.
Home builders need a clear definition of what constitutes waters of the United States that does not encompass man-made systems or remote features with marginal ecologic value and is not beyond congressional intent of the Clean Water Act.
Why It Matters
When home builders need to add fill material into a water of the United States, they first get a permit from the Corps. Obtaining permits is costly and time consuming. For example, one study found that it costs on average $270,000 and takes 788 days to obtain an individual Clean Water Act fill permit.
As the EPA and Corps expanded the definition of "waters of the United States," builders needed to obtain additional or more onerous permits, spending more time and resources to avoid wet features — this has been made all the more difficult because existing regulations do not clearly define which features to avoid.
- The EPA and Corps should move quickly to end regulatory uncertainty by rescinding the 2015 rule and replacing it with the newly-proposed definition.
For the latest WOTUS information, visit NAHBNow.