NAHB Recommends WOTUS Definition to OMB

Filed in Environmental by on September 14, 2018 2 Comments
OMB visit

NAHB staffer Michael Mittelholzer (left), HBA of Delaware President Jim McCulley and NAHB staffer Tom Ward in front of the Old Executive Office Building in Washington, D.C.

HBA of Delaware President Jim McCulley and NAHB environmentalists met this week with the White House Office of Management and Budget (OMB) staff to discuss how to define “waters of the United States” (WOTUS) in advance of the Trump administration’s proposed rule.

NAHB’s recommendations would simplify the Clean Water Act and clarify the features that comprise WOTUS to make it consistent with congressional intent, presidential directives and Supreme Court precedent.

These revisions would also provide needed certainty to home builders who face costly delays when trying to obtain permits when discharging dredge or fill material, or stormwater into federally regulated waters.

Ongoing legal battles mean that roughly half the states are subject to the 2015 rule and the rest subject to the ambiguous 1986 definition, resulting in unnecessary confusion for both builders and regulators.

In the meeting, NAHB reaffirmed several concepts the association submitted to EPA in 2017: In short, WOTUS features should include traditionally navigable waters (TNWs), as defined by Section 10 of the Rivers and Harbors Act of 1889, and perennial and intermittent waterbodies when those waterbodies demonstrate sufficient flow volume to a downstream TNW.

NAHB’s objective is a new WOTUS rule that is simple to understand and easier to implement. One way to accomplish that goal is to avoid complicated jurisdictional requirements that demand subsequent case-by-case analyses such as the “significant nexus” test under the 2015 WOTUS rule.

With regard to adjacent wetlands, NAHB urged the administration to adopt a definition that includes only those wetlands that directly abut a jurisdictional waterbody. NAHB also urged the administration to avoid ambiguous and confusing terms that characterize the 2015 WOTUS rule, such as “neighboring” and “similarly situated.”

OMB staff responded with thoughtful and engaging questions. In particular, they asked about the availability of data from the U.S. Army Corps of Engineers, and ease of measuring flow volumes, to define perennial and intermittent waterbodies to TNWs.

Among the additional questions they raised:

  • How should EPA and the Corps define “adjacency” of wetlands abutting a TNW or other jurisdictional water? “Adjacent” means directly abutting or separated only by a natural berm, NAHB said.
  • Why did NAHB’s comments mention the importance of including a separate definition for “wetland” when also defining “adjacent wetland” in a new rule? A “wetland” should satisfy all three parameters under the Corps of Engineers 1987 Wetland Delineation Manual: soils, vegetation and hydrology, NAHB responded. NAHB members have encountered inconsistent application of these parameters, including wetland definitions when only two parameters are present.   

While OMB staff did not provide a timeline for issuing a draft rule, NAHB is closely monitoring their progress and will keep members informed of WOTUS activities. For more information, contact Evan Branosky at 800-368-5242 x8662.

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Comments (2)

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  1. Chuck Sundsmo says:

    “Adjacent” wetlands should be removed entirely from the text. Originally wetland regulation was about keeping water clean that flowed into Waters of the United States (WOTUS).
    Including “adjacent” wetlands further muddies the water. Even if proven that an “adjacent” wetland is hydro-logically connected sub-surface, the water may not “flow” into a WOTUS.
    Let’s simplify the language and definitions.

  2. Great post thanks for sharing keep rocking

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