Document Ex9m47Gnew7VgLZwazyQZ7x6x

Definition of "Waters of the Issue Overview The Clean W ater Act makes it unlawful for a person to add pollutants to a "w ater of the United States" from a point source w ithout a permit. Since 1972, determ ining which w ater bodies are and are not "waters of the United States" has been the subject o f num erous court cases both at the U.S. Suprem e Court, and at the low er federal courts. On June 29, 2015, the Environm ental Protection Agency (EPA) and the A rm y Corps o f Engineers (Corps) jo in tly finalized a regulation titled "Clean W a ter Rule: D efinition o f 'W aters o f the United States'" (WOTUS Rule), providing a new definition o f the term "w aters o f the U nited States." Industry groups (including NAHB), and 32 states have filed litigation challenging the W OTUS Rule, and the regulation was placed under a nationw ide stay by the 6th Circuit Court o f Appeals soon after it w ent into effect. The industry and state challengers claim that the new definition is so broad that the EPA/Corps has exceeded its geographic jurisdiction under the Clean W ater Act by regulating m an-made ditches, channels that flow only when it rains, and isolated ponds. The challenges also argue that the EPA/Corps has not follow ed the procedures required by the National Environmental Policy Act, the Adm inistrative Procedure Act and the Regulatory Flexibility Act. Home builders need a clear definition of the term "w aters of the United States" that does not encom pass m an-m ade system s or features far from any navigable w ater, and that is not beyond congressional intent of the Clean W ater Act. Home builders must obtain federal perm its for activities that impact "waters of the United States." If builders need to add fill material into a w ater o f the U nited States, they generally obtain a CWA Section 404 perm it from the Corps. W hen builders need to discharge storm w ater into a "w ater of the United States," they obtain a CW A Section 402 perm it from EPA or a state that is federally approved to issue such permits. As the EPA/Corps expands the definition of "waters of the United States," builders must obtain more perm its and spend m ore resources to avoid features identified in the expanded definition. Obtaining perm its is costly and tim e consum ing. For exam ple, one study found that it costs on average $270,000 and takes 788 days to obtain an individual CW A Section 404 fill permit. On February 28th, President Trum p signed an executive order to begin the process o f fixing the flaw ed W OTUS rule. W hile the order doesn't unilaterally revoke the rule, it calls upon EPA and the Corps to review and rescind or revise this federal land grab. The Trum p A dm inistration w ill use a "tw o-step" approach to fix the rule: Step 1 - Repeal - EPA and the Corps have already initiated the rulem aking process by proposing to repeal the Obama A dm in istration's W OTUS rule. The proposal is currently open for public comment. Step 2 - Replace - A fter the flaw ed W OTUS rule is w ithdraw n, the agencies w ill propose a new rule to replace it. NAHB com m ends theT rum p Adm inistration for moving quickly to craft a clear, legally defensible rule that limits jurisdiction of the Clean W ater Act consistent with Congressional intent and Supreme Court rulings. NAHB rational Association of Home Builders Sierra Club v. EPA 18cv3472 NDCA Tier 7 ED 002061 00065185-00001