Trump Administration Finalizes WOTUS Rule

Posted on January 28, 2020

Last week, the U.S. Environmental Protection Agency (EPA) and the Department of the Army released the final version of the Navigable Waters Protection Rule. This regulation defines the “waters of the United States” (WOTUS) for purposes of determining the application of the federal Clean Water Act.

 NAIOP has strongly supported WOTUS reform that would provide greater clarity on the application of federal jurisdiction over domestic water bodies, and which would increase the predictability and consistency of government environmental permitting decisions.  NAIOP provided a comment letter to the EPA in 2019 with suggested revisions to the existing rule.

For developers and property owners, perhaps the most notable change concerns jurisdiction over ephemeral streams, which only flow intermittently, typically after rainfall. Regulation of these dry channels has been a contentious issue for years. This is especially true in more arid Western states, where they can account for the vast majority of streams, and may not see any water flow for long periods of time.

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