The U.S. District Court for the District of Arizona on Monday issued a ruling on the Navigable Waters Protection Rule (NWPR), which defines the “waters of the U.S. (WOTUS).” The court remanded and vacated the rule, but the scope of the decision is not clear.
The U.S. Environmental Protection Agency (EPA) has yet to respond to the court’s ruling, and NAHB has requested EPA and the U.S. Army Corps of Engineers (Corps) provide guidance on what version of the federal definition of WOTUS applies in the interim.
Following the ruling, NAHB Chairman Chuck Fowke issued a statement:
“NAHB is disappointed by the recent ruling against the Navigable Waters Protection Rule (NWPR) in the U.S. District Court for the District of Arizona. The NWPR provides a clear definition of waters of the U.S. (WOTUS) and better enables stakeholders to discern which waters fall under federal jurisdiction. This ruling is contrary to prior federal court decisions and will lead to more confusion over what features are jurisdictional, resulting in longer delays and higher housing costs.”
The ruling comes after the Biden administration announced its intent to change the regulatory definition of WOTUS under the Clean Water Act (CWA) in June. In response, NAHB Senior Officers, members and HBA staff participated throughout August in a series of virtual listening sessions held by EPA and the Corps to hear stakeholder feedback on these changes.
During the virtual hearings, NAHB representatives from across the country highlighted how aspects of the current WOTUS regulatory definition provide far greater regulatory clarity regarding what features are subject to CWA jurisdiction and what isolated or ephemeral features can, if needed, be regulated by the states.
“The current WOTUS definition is easy to understand and clearly specifies what features are jurisdictional. This regulation protects the critical waters that are connected and/or adjacent to navigable waters, which is clearly the charge of the federal government,” testified NAHB Life Delegate Jim McCulley, owner of Watershed Eco, an environmental consulting firm in Middletown, Del., during the Aug. 25 hearing.
NAHB thanks the members who testified, including NAHB’s Senior Officers and members Drew Smith, Sarasota, Fla.; Jeff Thomas, Fort Wayne, Ind.; Rick Wajda, Indiana Builders Association; and Scott Peterson, Phoenix, Ariz.
In addition to these listening sessions, the agencies intend to host regional roundtables in the fall to gather additional input. We will share additional information about how members can participate in the roundtables when it becomes available.
Learn more on this issue at the WOTUS page on nahb.org.