EPA Declares Pre-2015 WOTUS Rule Now in Effect

Filed in Codes and Standards, Environment by on September 3, 2021 6 Comments

Following the U.S. District Court for the District of Arizona’s ruling on Monday to remand and vacate the Navigable Waters Protection Rule (NWPR), which defines the “waters of the U.S. (WOTUS),” the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) released a joint statement on EPA’s website today stating “the agencies have halted implementation of the Navigable Waters Protection Rule and are interpreting ‘waters of the United States’ consistent with the pre-2015 regulatory regime until further notice.”

This unilateral decision by the agencies, without public input, means that landowners must immediately follow the federal definition of WOTUS that existed prior to both the Trump and Obama administration’s WOTUS rules.

While the agencies reiterated their commitment to change the regulatory definition of WOTUS under the Clean Water Act (CWA) announced in June, that effort is expected to take more than a year to complete. As previously reported, NAHB Senior Officers, members and HBA staff testified at a series of hearings throughout August to voice their support for retaining the NWPR and thereby avoid having the agencies revert back to asserting federal control over non-navigable and isolated wetlands, ephemeral streams, and roadside drainage ditches.

NAHB urges the agencies to reconsider this decision in light of previous problems with the pre-2015 WOTUS rule, including:

  • Using the “significant nexus test” to determine federal jurisdiction over non-navigable, isolated wetlands, roadside drainage ditches, and ephemeral features;
  • Asserting federal jurisdiction over adjacent wetlands by including isolated non-adjacent wetlands that lack any surface water connection to a traditional navigable water;
  • Allowing federal regulators to aggregate all isolated features across the entire watershed as “similar situated” to assert federal jurisdiction over the entire group; and
  • Establishing federal jurisdiction over roadside ditches based intermittent or even ephemeral flow.

The regulated community faces significant regulatory uncertainty in light of the agencies’ decision, as sections of the pre-2015 rules have been found unlawful by the courts, and the guidance documents provided by the agencies have been superseded by more current guidance.

NAHB is exploring all options to limit this federal overreach, as well as the challenges this reversion to the old rules will create. We will continue to keep members updated on further developments and provide additional guidance once it becomes available.

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Comments (6)

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  1. Jewel says:

    Power to the EPA. Lived in Clearwater, FL and surrounding areas for the last 20 years, and flooding has become more and more a problem due to loss of wetlands. It makes me feel horrible to see homes I helped build flooded and ruined. With all the floods happening up north now too, the writing is on the wall, and it’s only a matter of time before counties and states will let builders be held liable for this sort of thing and open to lawsuits.

    • Gman says:

      This rule has nothing to do with flooding, it is an over reach from a governing agency that was setup to regulate water quality and it has performed the DC power grab in trying to regulate all development in the US since most properties contain some sort of isolated wetland which is really just a low area of the property. The WMD requires developments to follow the prepost rule for stormwater runoff which means that a property post development can’t discharge more stormwater than it did predevelopment. This is handled through extensive site review and engineering controls.

      Flooding is an issue with old infrastructure that isn’t being properly maintained or wasn’t sized appropriately at the time because 30 years ago we didn’t pay attention to stormwater discharge like we do today.

      In the end, giving more power to any governmental agency is NOT the answer. Having proper design standards is a step in the right direction which we took years ago.

      Don’t fall for the DC power grab.

  2. Barbara Byrd says:

    This is a huge blow considering the years of effort that the staff, members, and Congress spent to right the wrong. Does this include projects that are approved and are in process?

    • NAHB Now says:

      NAHB is still awaiting guidance from the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) regarding the scope of last week’s ruling by the U.S. District Federal Court in Arizona vacating the regulatory definition of “waters of the U.S.” under the Clean Water Act (CWA) as finalized under the Navigable Waters Protection Rule. Under the Corps’ existing regulations and regulatory guidance (see Regulatory Guidance Letter No. 05-02 Expiration of Geographic Jurisdictional Determinations of Waters of the United States) landowners with Approved Jurisdictional Determinations (AJDs) from the Corps may rely upon these final JD determinations for a period of five years from issuance. In addition, the CWA statute itself limits the duration of all issued Nationwide Wetlands Permits to five years.

  3. Bad development policy by local governments is the primary issue. I don’t think they can go after builders that adhered to the development and code requirements at time of construction. Florida has a robust mitigation program to address flooding by improving drainage and holding ponds due to urban infill. The problem with development and flooding is that it is a moving target and properties that may have never flooded are now flooding because of poor development decision by local governments,. Climate Change poses the same problem and same solution. Man has survived because of our ability to adapt. we have never and never will be able to control the weather no matter what we do. We can control flooding and damage by mitigating the underlying development issues. The problem is simple, the solution is complex.

  4. darius grimes says:

    So if it was overturned by a District Court in Arizona it is likely that ruling was political or arbitrary and will be overturned by a higher court?

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