In a Win for NAHB, EPA to Seek New WOTUS Rule with Streamlined Permitting

In a move strongly supported by NAHB, Environmental Protection Agency (EPA) Administrator Lee Zeldin announced today that EPA will work with the U.S. Army Corps of Engineers (Corps) to solicit public input and craft a new regulation for the waters of the U.S. (WOTUS) rule that reduces red tape, cuts overall permitting costs and lowers the cost of business in communities across the country while protecting the nation’s navigable waters from pollution.

“NAHB commends the EPA for moving to make changes to the WOTUS rule that will protect our nation’s waterways and provide builders and developers the clarity and certainty they need in the federal wetlands permitting process to help house America’s citizens,” said NAHB Chairman Buddy Hughes. “Today’s action by the EPA will help alleviate federal permitting roadblocks that are exacerbating the nation’s housing affordability crisis.”

EPA will also undertake a rulemaking process to revise the 2023 definition of WOTUS with a focus on clarity, simplicity and improvements that will stand the test of time. While this rulemaking process proceeds, the agency will provide guidance to those states implementing the pre-2015 definition of WOTUS to ensure consistency with the law of the land.

Regulatory Guidance Has Immediate Positive Results

The regulatory guidance released today by EPA is immediately in effect and thus ends the use of an interagency review process by the EPA and the Corps that affects landowners seeking Clean Water Act (CWA) 404 Approved Jurisdictional Determination (AJDs) for properties with isolated wetlands and man-made drainage ditches.

When NAHB sent a list of policy recommendations to the incoming Trump administration last fall, this specific item was highlighted as a regulatory abuse by the agencies during the Biden administration because it effectively allowed Corps districts and EPA staff to delay indefinitely requested AJDs. Moreover, it also allowed federal regulators within the EPA and the Corps to assert — despite the U.S. Supreme Court’s Sackett ruling — that otherwise CWA non-jurisdictional isolated wetlands are CWA-jurisdictional “adjacent wetlands” by claiming a “continuous surface connection” exists between the wetland and another CWA jurisdictional feature.

EPA’s review of the WOTUS rulemaking will be guided by the Supreme Court’s decision in Sackett v. Environmental Protection Agency, which stated that the CWA’s use of “waters” encompasses only those relatively permanent, standing or continuously flowing bodies of water-forming streams, oceans, rivers and lakes. The Sackett decision also clarified that wetlands would only be covered when having a continuous surface connection to waterbodies that are “waters of the United States” in their own right.

For more than a year, NAHB has been leading the charge to push EPA and the Corps to adhere to the Supreme Court’s ruling pertaining to the definition of WOTUS under the Clean Water Act. Last fall and at NAHB’s urging, more than two dozen lawmakers sent a joint letter to the two federal agencies calling on the Biden administration to adhere to Sackett ruling on WOTUS.

NAHB has also testified before Congress on WOTUS on several occasions, most recently this February and last fall.

In announcing that EPA will consider a new rulemaking, the agency said “it is critical that Americans know which waters are subject to federal jurisdiction under the Clean Water Act to grow our economy and lower costs for American families while protecting human health and the environment.”

The agency further added that it will begin its review “by expeditiously obtaining input from stakeholders who were sidelined during the previous administration.”

NAHB will be participating in this rulemaking process by submitting comments to the agencies that lay out our vision to enact common sense regulatory reforms to the WOTUS rule that will make compliance more efficient and less onerous while helping home builders to better safeguard the environment and expand the availability of attainable, affordable housing for all Americans.