Trump Administration Finalizes WOTUS Rule

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 “waters of the United States” (WOTUS) for purposes of determining 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.

Under a previous version of the WOTUS rule, ephemeral streams fell under federal jurisdiction, so long as they showed a “nexus” to a downstream waterway, a murky standard that proved difficult to interpret and enforce. Other sources, including groundwater, storm ditches and artificial lakes and ponds, will not be regulated under the new rule.

NAIOP President and CEO Thomas Bisacquino issued a statement supporting the changes to WOTUS. “For years, the lack of a clear definition regarding the scope of federal regulation of our nation’s waters has been a costly source of confusion, delays, and compliance challenges for the commercial real estate industry,” Bisacquino wrote. “NAIOP appreciates and commends the work of EPA and Army Corps of Engineers for addressing many of these concerns, and for developing a rule that implements commonsense streamlining measures, as well as appropriate jurisdictional definitions, among other changes.”

The changes are expected to be challenged in court.

Meanwhile, even as lawmakers are discussing the president’s future, there is progress on another topic that is important to commercial real estate. On Wednesday, Trump plans to sign an important free trade measure, the U.S.-Mexico-Canada trade agreement. NAIOP lobbied in favor of USMCA, which replaces NAFTA and will improve trade throughout North America.