Feb. 28, 2017 update: President Trump today signed an executive order directing the Environmental Protection Agency to rescind or revise the controversial "waters of the United States" (WOTUS) rule.
The Clean Water Act makes it unlawful for a person to add pollutants to a “water of the United States” without a permit.
Since 1972, determining which water bodies are waters of the United States has been the subject of numerous cases both at the U.S. Supreme Court and at the lower federal courts.
In 2015, the Environmental Protection Agency (EPA) and the Army Corps of Engineers jointly finalized the Clean Water Rule: Definition of ‘‘Waters of the United States.” The rule provides a new definition of the term.
A decision by the Sixth Circuit Court of Appeals stayed the confusing new rule, and Industry groups including NAHB, and 32 states have filed litigation to challenge it and point out that the new definition is so broad that the EPA and Corps have exceeded their jurisdiction by regulating man-made ditches, channels that flow only when it rains and isolated ponds – none of which should be subject to the new rules.
In addition, industry and the states have argued that the EPA and Corps has failed to follow the procedures established by the National Environmental Policy Act, the Administrative Procedure Act and the Regulatory Flexibility Act. The U.S. Supreme Court has agreed to examine the decision.
And in January, a bill was introduced in the Senate to withdraw the rule all together.
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 expand the definition of “waters of the United States,” builders must obtain more permits, or more time and resources must be spent to avoid such features -- and the new definitions aren’t clear as to precisely what to avoid.
- The EPA and Corps should reconsider the rule in light of the legal guidance provided by the U.S. Supreme Court.
- The term “waters of the United States” provides little direction to the EPA and Corps. Congress should develop a definition that is predictable and limited to protecting true aquatic resources.