EPA Repeals Obama-Era WOTUS Rule

In a positive development to resolve years of uncertainty over where federal jurisdiction begins and ends, the Environmental Protection Agency today rescinded the Obama-era “waters of the U.S.” (WOTUS) rule.

“NAHB commends the EPA and U.S. Army Corps of Engineers for repealing the 2015 WOTUS rule that vastly expanded federal overreach over water and land use by regulating man-made ditches and isolated ponds on private property,” said NAHB Chairman Greg Ugalde.

“By repealing the 2015 rule, the EPA and Corps have finally provided consistency among all 50 states, which will make the federal permitting process more predictable and affordable,” he added. “Now, the agencies need to finalize a new definition that restores common sense to the regulatory process by respecting states’ rights and balancing economic and environmental concerns.”

The 2015 WOTUS rule has been subject to several legal challenges that halted its implementation nationwide. Last month, the U.S. District Court for Georgia issued a decision finding that the substance of the rule violates the Clean Water Act. The court remanded the rule back to the agencies to fix it.

Prior to EPA’s repeal announcement, the Obama-era rule was in effect in 22 states and the District of Columbia, and the previous regulations issued in 1986 were in effect in the remaining 28 states. The EPA decision means the 1986 rule will now be in effect in nationwide until a final replacement rule is issued.

The Trump administration has proposed a new WOTUS rule that NAHB generally supports. The proposed rule would clarify the extent of federal oversight and correct the vast overreach of prior rules. Once finalized, builders and developers will be better able to determine for themselves whether they will need federal permits for construction activities.

And, because the proposed rule narrows the extent of federal jurisdiction by excluding isolated water bodies, “ephemeral” waters that only form in response to rain, and most ditches, builders should require fewer Clean Water Act permits for isolated or temporary wetlands or water bodies.