Court Sends WOTUS Rule Back to the EPA
In a victory for NAHB and the housing industry, the U.S. District Court for the Southern District of Texas declared that the Environmental Protection Agency (EPA) violated the Administrative Procedure Act when drafting the Obama-era ‘waters of the United States’ (WOTUS) rule in 2015.
In 2015, NAHB and the Texas Association of Builders, among others, filed a lawsuit in the Southern District of Texas challenging the definition of the 2015 WOTUS rule. The court has issued a partial decision on NAHB’s summary judgement motion by remanding the 2015 WOTUS rule back to the EPA. However, the court did not vacate the rule.
The court’s ruling addressed NAHB’s procedural challenges to the rule. The court found that when proposing the rule, the EPA and U.S. Army Corps of Engineers defined “adjacent waters” based on hydrology and ecology. But when issuing the final 2015 WOTUS rule, the agencies defined “adjacent waters” based on precise numerical distances.
This change did not provide the public with sufficient notice to comment on distances, and therefore, the court stated that the final rule was not a “logical outgrowth” of the proposal.
The second reason the court found fault with the rule is that the agencies relied (heavily) on the “Final Connectivity Report,” yet closed the notice and comment period before that report was final. Therefore, the court said the agencies did not give commenters the opportunity to refute the “most critical factual material used to support the Final Rule,” and failed to provide a meaningful opportunity to comment.
While the court remanded the 2015 WOTUS rule back to the EPA, it kept in place the injunction to keep the rule from taking effect in Texas, Mississippi and Louisiana. This is the first summary judgement decision from any court concerning the 2015 WOTUS rule and is important because it will provide momentum for the EPA to ultimately repeal it.
For more information, contact Tom Ward at 800-368-5242 x8230.
Latest from NAHBNow
NAHB Chief Economist Dr. Robert Dietz will be featured in a live webinar on Dec. 8, 2026, hosted by Pro Builder.
Celebrate the professionals who make the Federation stronger.
Latest Economic News
The number of open positions in the construction sector increased in September per the Bureau of Labor Statistics Job Openings and Labor Turnover Survey (JOLTS). The current level of open jobs is down from three years ago due to declines in construction activity, particularly in housing.
Private residential construction spending decreased in September 2026 driven by a steep decline in improvement (remodeling) spending. According to the latest construction spending data from the U.S. Census Bureau, private residential construction spending came in at a seasonally adjusted annual rate (SAAR) of $848.8 billion in September, down 5.5% from the revised August estimates and lower by 8.9% from last year.
Interior finishes (drywall, interior doors, painting, cabinets, countertops, plumbing fixtures, flooring, etc.) take more time to complete—6.4 weeks, on average—than any other major stage of single-family construction, according to results from the latest NAHB/Well Fargo Housing Market Index (HMI) survey.