Waters of the U.S.

The Clean Water Act (CWA) makes it unlawful for a person to add pollutants or dredge or fill material into a “water of the United States” (WOTUS) without a permit.

Since 1972, determining which water bodies are waters of the United States has been the subject of federal agency regulations, guidance and numerous cases at the U.S. Supreme Court and lower federal courts. The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) (referred to as the Agencies) are charged with regulatory authority to define WOTUS under the CWA.

EPA and Army Corps Issue Confirming Final Definition of WOTUS

On Sept. 8, 2023, the EPA and Army Corps released in the Federal Register the final version of the conforming definition of WOTUS (hereafter, “2023 conforming rule”). The EPA and Army Corps released a fact sheet for the final rule and a redline version of the WOTUS definition. According to the Federal Register notice, the rule is set to go into effect immediately on Sept. 8. This is the fifth update to the official regulatory definition of WOTUS since 2015.

President Biden’s amended definition of the waters of the United States relies on a fatally flawed version of the 2023 Revised Definition of WOTUS (2023 rule). Rather than taking this opportunity to make the necessary changes and improvements to the 2023 rule, the EPA and Army Corps did the bare minimum and struck the most egregious and unlawful parts of it. The 2023 conforming rule doubles down on bad policy and vague terms, such as “relatively permanent” and “continuous surface connection,” allowing for continued government overreach when the agencies will do a case-by-case analysis of each waterbody to determine if it is relatively permanent.

It is a missed opportunity to provide regulatory certainty to the home building industry. NAHB hoped the agencies would make the necessary changes to the underlying rule; instead, they rushed forward with this final rule without seeking public comment or engagement.

Fortunately, the agencies respected the Supreme Court by removing the portions of the rule reliant on the significant nexus test and changing the definition of “adjacent” to comply with the Court’s ruling in Sackett. The 2023 conforming rule clarifies that interstate wetlands are no longer jurisdictional.

More importantly, after halting it in May, the agencies will resume processing approved jurisdictional determinations (AJDs) and the permitting program once the Army Corps’ district offices receive implementation guidance from the Army Corps’ HQ.

Why It Matters

When home builders need to add fill material into a water of the United States, they must first get a permit from the Corps. Obtaining permits is costly and time-consuming. For example, one study found that it costs, on average, $270,000 and takes 788 days to obtain an individual CWA fill permit.

The Biden administration has declared an affordable housing crisis, with a laudable goal to increase the production of affordable housing units while at the same time reducing regulatory barriers to new affordable housing. One of the ways the administration aims to achieve this is by tying federal funding incentives to states and local governments to reduce land use and zoning barriers to new affordable housing projects.

The White House acknowledges that one of the most significant issues constraining housing supply and production is the lack of developable land — specifically, affordable building lots. Policies such as the revised WOTUS rule create more barriers to affordable housing when the larger U.S. housing market already faces high mortgage rates, escalating costs for building materials, and an overall nationwide deficit of 1.5 million new single-family homes.