WOTUS: What’s Next

Filed in Codes and Regulations, Environmental by on March 3, 2017 2 Comments

constructionNow that President Trump has ordered an extensive review of the “waters of the United States (WOTUS)” definitions in the Clean Water Act, many NAHB members have questions about how this executive order changes the stormwater and wetlands permitting processes they have been following all along – and what the next steps are.

Let’s go to our resident WOTUS specialist: NAHB Environmental Policy Program Manager Owen McDonough, PhD.

Owen, what are the rules now – what has changed? For builders, not much. First, the new WOTUS rule never really had an opportunity to actually take hold. It was suspended by a federal court ruling just weeks after being finalized in 2015. What this new executive order means is that EPA and the Corps must take a giant step back and thoroughly review the flawed rule.

The current rule is not very clear, doesn’t take into account the need for economic growth and oversteps the rights of states to make decisions within their own borders. It fundamentally attempts to expand Clean Water Act requirements beyond what Congress originally intended while at the same time ignoring Supreme Court decisions.

So until EPA and the Corps finish their task of fixing or replacing the WOTUS rule, it’s business as usual. The Clean Water Act and all its requirements remain in place. Builders and developers must get permits just as they always have.

Is WOTUS going away? No, the President does not have that authority to erase the WOTUS rule. He’s telling the agencies he wants a comprehensive review and a revised rule that makes sense for everyone. And he wants it quickly. He doesn’t want to leave the regulated community – especially home builders – in limbo. Our industry is arguably the most heavily regulated under the Clean Water Act, and we need a rule that provides clarity and does not overreach.

So what happens next? Well, the law requires certain steps before any substantive change happens. The most likely path forward would be for EPA and the Corps to issue a proposed rule to rescind or revise WOTUS. It will appear in the Federal Register and be available for comment, and after taking the comments into account, the agencies will issue their final rule. If the final role says that WOTUS should be revised, you can expect a flurry of lawsuits from interest groups who are afraid that any new rule will not do a good enough job protecting the nation’s waters – even if they don’t know what it’s going to look like yet.

After that, the agencies will propose a new rule.

How will NAHB be involved in the process? We already have requested a meeting with the new EPA Administrator to discuss the problems with WOTUS and all the other issues facing our industry. Our views must be heard, and we know that the administration wants us to engage. President Trump wants us at the table.

NAHB will work to ensure that any new WOTUS rule doesn’t expand federal jurisdiction and clearly defines the limits of jurisdiction. We are on the ground, and we can provide valuable insight.

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  1. Gary T says:

    Not only is the “Waters of the US/State” a huge issue, but also the introduction of “sediment” as a “pollutant” as defined by the CWA.

    Sediment was never intended to be addressed by the introduction of the CWA. It is part of the ever evolving nature of this once well-meaning legislation. This one item, that has been imposed on the development/building community, while not on the agricultural world, has skyrocketed our costs; while doing very little, at least in our area, to clean up the water. With the erosive nature of our soils we are simply not able to meet the clean water requirements sent down to the states by EPA. At least not in any cost effective manner that our market can absorb.

    We need NAHB to help us gain relief from the onerous new measures that seem to increase almost daily. Mountains of paperwork and engineering fees to meet the new monitoring regulations and requiring tremendous other resources that do nothing to actually clean up the waters leaving our development sites.

  2. David Erickson says:

    The clean water act was intended for “NAVIGABLE WATERS”. Hard to imagine some of the wetlands we address routinely today as navigable.
    A complete relook at the law from it’s original intent should be very welcome in the construction community.

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