In light of the recent proposed updated definition on "waters of the United States" (WOTUS), the National Association of Home Builders (NAHB) has approved the resulting clarifications on "relatively permanent" and "continuous surface connection" that will provide greater certainty during the construction and permitting process.

 
In the current iteration, wetlands adjacent to waters of the United States are jurisdictional under the Clean Water Act if they have "a continuous surface connection." Under the proposed rule, this term will be defined for the first time as "having surface water at least during the wet season and abutting (i.e., touching) a jurisdictional water."

The proposal also clarifies that the "relatively permanent" waters under jurisdiction would include "standing or continuously flowing bodies of surface water that are standing or continuously flowing or at least during the wet season." This would not include "ephemeral waters" - defined as "those who have flowing or standing water only in direct response to precipitation" - but would include tributaries, lakes, and ponds. It would, however, exclude ditches, wastewater treatment devices, and groundwater.

These clarifications are important to determine which waters are subject to federal jurisdiction under the Clean Water Act, as previous, unclear boundaries caused projected delays and unpredictable permitting, according to NAHB. In a statement immediately following the EPA and Corps announcement in November, NAHB said, "By clarifying which waters are jurisdictional, this rule offers a more predictable permitting process, reducing administrative burdens, and supporting housing production and affordability."

The Federal Register published the newest proposed definition and, at the time of writing, had received over 15,000 comments at the end of a 45-day public comment period.

LASN will continue to follow the proceedings.