Developers Should Review NAHB FAQs for (Unofficial) Interim Guidance on WOTUS Rule Change
On August 30, the U.S. District Court for the District of Arizona ruled to remand and vacate the Navigable Waters Protection Rule (NWPR), the regulatory definition for WOTUS finalized under the Trump Administration. Following the court’s decision, the Environmental Protection Agency (EPA) and the U.S. Army of Corps of Engineers (USACE) released a joint statement halting the implementation of the NWPR, announcing they are now “interpreting the ‘waters of the United States’ consistent with the pre-2015 regulatory regime until further notice.”
While the development community waits for the agencies to provide further guidance, NAHB has drafted FAQ’s to offer interim (unofficial) guidance, based on the Clean Water Act statute, existing regulatory guidance and past practices by the agencies.
Click Here to view NAHB FAQs offering interim (unofficial guidance) regarding:
- Applicants with a signed approved jurisdictional determination (JD) or nationwide permit (NWP) issued prior to the agencies’ Aug. 31 announcement.
- Applicants awaiting a JD or NWP.
- Landowners with ongoing or planned projects based upon the NWPR definition of WOTUS.
- Basic Information about the Pre-2015 WOTUS Regulatory Definition.
NAHB has advocated that the agencies reconsider their decisions, pointing to the problems that arose with pre-2015 WOTUS rule, including use of a nexus text to determine federal jurisdiction over non-navigable features such as roadside drainage ditches and isolated ponds. The NWPR corrected this type of federal overreach, eliminating the significant nexus test and not including federal jurisdiction over waters that only form in response to a rainfall, while still providing protection for critical waters that have a surface connection to traditional navigable waters.