NAHB Actively Engaged in WOTUS Rulemaking, Calls for More Transparency

The Biden administration’s process for withdrawing the Trump administration’s “waters of the U.S.” (WOTUS) definition under the Clean Water Act (CWA) and replace it with another WOTUS definition has broad ramifications affecting land developers, home builders and countless other small businesses.

In response, NAHB’s Senior Officers Jerry Konter, Alicia Huey, Carl Harris and Greg Ugalde are participating in a series of virtual hearings hosted by the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) to voice concerns on specific aspects of the proposed WOTUS rule that, if adopted, could significantly increase the scope of CWA’s jurisdiction, in addition to creating increased regulatory confusion and subsequent CWA permitted delays compared to the Trump administration’s rule.

And while NAHB remains actively engaged throughout this process, we continue to express strong concerns to regulators, Congress and the Administration over the legality, transparency, and fairness of this rulemaking process.

Most notably, EPA and the Corps claimed under the Regulatory Flexibility Act the proposed rule will not have a significant economic impact upon small businesses.

Under the Regulatory Flexibility Act, EPA and the Corps are required to consider the impact on small businesses concerning their proposed changes to the definition of WOTUS and provide recommendations on regulatory alternatives to minimize the burden to businesses, organizations and governmental jurisdictions subject to the regulation.

In addition, last week the Corps abruptly released a statement on its website stating the agencies would no longer issue to developers and builders requested federal wetlands permits based upon final approved jurisdictional determinations (AJDs) made by the Corps under the current WOTUS rule. This is a significant reversal of the Corps’ policy concerning AJDs, which states those determinations were valid for five years.

In communities across the nation, small businesses are driving economic growth and environmental stewardship. The proposed changes to WOTUS will have substantial impacts on the ability of small companies and small landowners, which are the backbone of the American economy, to help meet the nation’s ambitious climate and infrastructure goals.

Despite bipartisan recommendations and the Small Business Administration’s own advice for EPA to engage small business stakeholders by convening a Small Business Regulatory Enforcement Fairness Act (SBREFA) panel as required by the Regulatory Fairness Act, EPA has failed to act. The panel would ensure that the needs and priorities of small businesses are fully taken into account early in the rulemaking process.

NAHB is urging Congress to use its oversight authority to intervene and call for a SBREFA panel that formalizes small business input and provides prompt public comment through a transparent rulemaking process.