NAHB Members Tell Federal Regulators How to Define WOTUS


Jerry Passman explains the thicket of regulations that builders in Louisiana and around the country must navigate.

As part of a series of outreach meetings held by the Environmental Protection Agency and the Army Corps of Engineers, NAHB members Jim McCulley and Jerry Passman joined other small businesses this morning at EPA headquarters to tell federal regulators how to define “waters of the United States” (WOTUS) and the limits of federal authority over developers and other private property owners under the Clean Water Act (CWA).

These sessions follow the Feb. 28 Presidential executive order on “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.”  The order directs EPA and the Corps to review and rescind or revise the 2015 WOTUS rule that dramatically extended the areas in which home builders are required to get CWA permits and that blatantly usurped state and local regulatory authority.

The agencies will use a two-step process to develop a new WOTUS definition.

First, they have proposed to withdraw the 2015 rule and revert to the status quo.  Next, the agencies will develop a new WOTUS definition. The comments McCulley and Passman made today will help inform that new language.

McCulley, owner of Watershed Eco and president of the HBA of Delaware, has worked on a variety of wetland delineation projects for builders and developers over his 30-year career — and has seen the federal interpretation of WOTUS get broader and more complicated.


Jim McCulley pauses to smile before his testimony.

“A new rule to define WOTUS must be clear, legally defensible, and limit jurisdiction of the Clean Water Act consistent with Congressional intent and Supreme Court rulings,” said McCulley. “A clear WOTUS definition would be a tremendous benefit to NAHB members in greatly reducing the time and cost to complete projects and removing the federal government from land-use decisions in features beyond the scope of the act.”

Passman, owner of Passman Homes in Baton Rouge, La., regularly tries to avoid developing near WOTUS, stating “life is too short” to have to wait on the federal government for an expensive, time-consuming permit. But under the 2015 WOTUS Rule, he would no longer be able to avoid WOTUS as the rule swept almost everything into the federal regulatory net.

“We have a great opportunity to write a new rule that is good for all stakeholders. I want to see a rule that protects clean water and allows families to pursue the dream of homeownership without driving home prices up with unnecessary permits,” Passman told federal regulators.

EPA and the Corps are also taking written comments from the public about how WOTUS should be defined. Recommendations must be received by Nov. 28. Submit your recommendations, identified by Docket ID No. EPA-HQ-OW-2017-0480, to


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