The Presidential Administration’s new executive order directs the Environmental Protection Agency to reevaluate the “waters of the United States” rule, which greatly expanded the definition of what qualified as a waterway and would’ve heavily impacted developers and builders, including here in Oregon.
The new Administration recently released an executive order which directs the Environmental Protection Agency (EPA) to rescind or revise the “waters of the United States” (WOTUS) rule. The controversial WOTUS rule added a host of regulations and costs to collections of water that haven’t traditionally been considered waterways. Additionally, it utilized the vague term “waters of the United States” which bred confusion about which water bodies qualified and made enforcement unclear and difficult.
In 2015, the EPA and the Army Corps of Engineers jointly provided a new definition of the term to include man-made ditches, channels that flow only when it rains, and isolated ponds on private property. The National Association of Home Builders (NAHB), affiliated with HBA Metro Portland, was one of multiple industry groups and 32 states who filed litigation challenging WOTUS due to its broad nature and the fact that it failed to follow the procedures established by three separate federal acts regarding environmental policy and regulatory flexibility.
NAHB has led the regulatory, legislative, and judicial efforts to address industry concerns with the WOTUS rule and this new executive order to reconsider the rule is a big success for NAHB and the industry. Locally, this is a win as well, as the WOTUS rule would have altered the definition of a waterway and therefore required many more evaluations on the impacts of development. Currently, the Department of State Lands only requires builders to address water pollution when dealing with a real wetland, creek, stream, etc. The WOTUS rule, conversely, would’ve made any channel of water, including ditches and culverts, subject to waterway level evaluation.
HBA is supportive of protecting true waterways in the region and there are currently many local wetland/water way protection standards at the local level within the Metropolitan Jurisdictions. The cities and counties within the metropolitan area currently look to the Department of State Lands and the US Army Corps of Engineers for matters related to the establishment of wetlands and for the regulation of wetland impacts. The protection areas, known as natural resource corridors or vegetative buffers to waterways and wetlands, are established and managed at the local level and they are more than sufficiently restrictive to provide separation between development and natural resources. By dodging the establishment of State and Federal jurisdiction over the areas adjacent to wetlands, we’re able to keep what is already a slow permitting process from being slowed further by involving federal involvement.