In an important win for NAHB and the housing community, the U.S. District Court for the Southern District of Georgia on Aug. 21 filed a carefully worded 85-page decision that dismantles the Obama-era 2015 waters of the U.S. (WOTUS) rule. This is the first court to find that the substance of the 2015 rule violates the Clean Water Act (CWA).
NAHB, with our coalition, intervened in this case in 2018 to support the 11 states that initially filed suit in Georgia. The court decision remands the 2015 WOTUS rule back to the Environmental Protection Agency and the U.S. Army Corps of Engineers to fix it.
However, the court did not vacate the rule. As a result, the Obama-era WOTUS rule remains in effect in 22 states and the District of Columbia, and the previous regulations issued in 1986 are in effect in the remaining 28 states.
The agencies are working to repeal the 2015 WOTUS rule and have proposed a new WOTUS rule that NAHB expects will be finalized by the end of the year. NAHB supports the proposed rule, which would clarify the extent of federal oversight and correct the vast overreach of prior rules. Once finalized, builders and developers will be better able to determine for themselves whether they will need federal permits for construction activities. And, because the proposed rule narrows the extent of federal jurisdiction by excluding isolated water bodies, “ephemeral” waters that only form in response to rain, and most ditches, builders should require fewer CWA permits for isolated or temporary wetlands or water bodies.
The judge presiding in the U.S. District Court for the Southern District of Georgia held that the 2015 WOTUS rule violates both the CWA and the Administrative Procedure Act (APA). Specifically, she found that:
- The CWA prohibits labeling all interstate waters as WOTUS. The interstate waters argument is one that NAHB has been making to the agencies for years.
- The agencies’ assertion of jurisdiction over tributaries “is an impermissible construction of the CWA" because it captures water bodies that do not have a significant nexus to navigable waters.
- The adjacent waters jurisdiction is unlawful both because it is based off the unlawful tributary definition and because it uses “overbroad” geographic/distance limits that don’t guarantee a physical connection or other significant nexus to navigable waters. Specifically, the court explained that the 2015 WOTUS rule’s adjacent water tests allows the agencies to regulate “drains, ditches and streams” adjacent to non-navigable tributaries and “remote from any navigable in fact water,” which former U.S. Supreme Court Justice Kennedy stated was impermissible.
- The 2015 rule works a “vast expansion of jurisdiction over waters and land traditionally within the states’ regulatory authority,” which “cannot stand absent a clear statement from Congress in the CWA. Since no such statement has been made, the WOTUS rule is unlawful under the CWA.”
- The agencies violated the APA because the 2015 rule was not a “logical outgrowth” of the proposed rule. In other words, the agencies did not provide the public with a fair notice of the substance of the final rule.