Revised Waters Rule a Victory for Builders

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By The National Association of Home Builders | February 1, 2019
Photo: Unsplash/Alexandre Nishimura

The Trump administration’s proposed new definition of “waters of the United States” (WOTUS) represents an important regulatory victory for the National Association of Home Builders and its members.

When finalized, the proposed new definition will provide much-needed clarity regarding which waters fall under federal oversight. The revision is a significant improvement over the definition of WOTUS set forth in a 2015 rule-making that was confusing and an excessive encroachment of federal authority.

The proposed rule addresses many of the concerns NAHB had with the 2015 regulation, which went so far as to regulate man-made ditches and isolated ponds on private property. The new definition would exclude short-lived ponds, streams, and tributaries that only flow in response to a rain event. It would also exclude wetlands not directly connected to federally regulated bodies of water. This would help landowners determine whether a project on their property will require a federal permit, without needing to hire engineering and legal consultants.

The new rule will also help accelerate the permitting process, enabling builders to more easily provide affordable homes to families across the economic spectrum.

NAHB fought the 2015 rule in the courts, on Capitol Hill, and in the halls of key federal regulatory agencies. NAHB emphasized to legislators and regulators how the rule was inconsistent with congressional intent and Supreme Court precedent. NAHB also led in litigating WOTUS in the federal courts.

The partial shutdown of the federal government may delay the beginning of the public comment process on this proposed rule. While the Environmental Protection Agency (EPA) announced this proposal on Dec. 11, 2018, the proposed rule wasn’t published in the Federal Register at that time. The clock won’t start ticking on the required public comment period until it’s published in the Federal Register, after the shutdown concludes. EPA and the Army Corps of Engineers already postponed a scheduled public hearing, originally scheduled for Jan. 23 in Kansas City, Kan., on the proposed rule.

Until the new rule is in effect, the Obama-era WOTUS rule remains active in 22 states and the District of Columbia, and the previous regulations issued in 1986 are active in the remaining 28 states.


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