SCOTUS Takes on WOTUS
At the urging of NAHB and other business groups, the U.S. Supreme Court has agreed to hear a challenge to the Clean Water Act that would clarify an earlier ruling from the nation’s highest court issued in 2006.
The Supreme Court indicated it will hear the case perhaps when its new term begins in October. NAHB and other stakeholders are hoping the decision will provide the regulatory certainty that landowners, states and local governments need so they know where to avoid impacts to wetlands, streams and ponds.
In the 2006 case Rapanos vs. U.S., the Supreme Court issued a split 4-1-4 decision regarding the definition of “waters of the United States.” (WOTUS) that led to two different tests to determine jurisdictional waters. Then-Justice Anthony Kennedy proposed a definition which rejected the Environmental Protection Agency and U.S. Army Corps of Engineers’ ability to automatically assert jurisdiction over any activity impacting an isolated wetland or water that lacked a “significant nexus” to a traditional navigable water.
A narrower definition proposed by then-Justice Anthony Scalia said that a wetland must have “continuous surface connection” to regulated waters, meaning it must be connected to a river, lake or other waterway.
The Supreme Court agreed to hear a case brought by Idaho couple Chantell and Mike Sackett, who previously won an earlier case in the high court in 2012 when it ruled the Sacketts could challenge the EPA in federal court before the agency took final enforcement action.
For years, the Sacketts have been battling the EPA over whether there are wetlands on their property that would force the couple to apply for a federal permit under the Clean Water Act. Part of this stems from the uncertainty over whether to follow the Scalia or Kennedy model in determining the limits of federal jurisdiction over isolated non-navigable wetlands under the Clean Water Act.
The Biden administration is currently rewriting the WOTUS definition to expand federal jurisdiction over non-navigable, isolated, or even ephemeral features based upon whether or not EPA or the Corps claimed those features met Justice Kennedy’s “significant nexus” test.
NAHB has been critical of the Biden administration’s proposed WOTUS rule, as well as its decision to rescind the Trump administration’s WOTUS rule that relies upon Justice Scalia’s “continuous surface connection” test rather than “significant nexus” to establish Clean Water Act jurisdiction over only those wetlands and tributaries that maintained a direct surface water connection to another traditional navigable water.
Finally, NAHB has also been concerned over the level of transparency by the Corps and EPA regarding the likely economic impact resulting from the proposed WOTUS definition upon small businesses like NAHB’s membership, as well as the limited opportunities for public engagement during the rulemaking process.
NAHB is urging Congress to use its oversight authority to intervene and direct EPA and the Corps to extend the public comment period beyond the current Feb. 7 deadline as well as comply with the Small Business Regulatory Enforcement Fairness Act by convening a panel to solicit the input of small businesses, including NAHB members, before finalizing a new WOTUS regulatory definition under the Clean Water Act.
For more information, contact Tom Ward or Michael Mittelholzer.
Latest from NAHBNow
Sep 24, 2025
New Home Sales Post Unexpected Large Gain in AugustSales of newly built single-family homes jumped 20.5% higher in August, to a seasonally adjusted annual rate of 800,000 from an upwardly revised reading in July, according to newly released data from the U.S. Department of Housing and Urban Development and the U.S. Census Bureau. The pace of new home sales is up 15.4% from a year earlier. The three-month moving average of new home sales was 713,000, an increase from the 656,000 in July. New home sales remain down 1.4% on a year-to-date basis.
Sep 23, 2025
NAHB Members: Join the Housing Industry’s Attorney NetworkDoing business with fellow members is a core value of the NAHB Federation. To strengthen that commitment, NAHB is building a network of attorney members to assist peers with legal issues.
Latest Economic News
Sep 24, 2025
Single-Family Construction Loan Volume Falls BackThe NAHB Land Acquisition, Development and Construction (AD&C) loan survey in the second quarter reported tightening credit conditions for builders. Consequently, FDIC data reporting the outstanding volume of 1-4 family construction loans fell in the second quarter.
Sep 23, 2025
Beyond the Official Unemployment Rate: A Deep Dive into U.S. UnemploymentIn August, the official, or standardly referenced, unemployment rate rose slightly to 4.3%, up from 4.2% in July. This marks the highest level in nearly four years, though it remains historically low.
Sep 22, 2025
Single-Family Homes Are Built Faster in 2024Building a new single-family home took less time in 2024 compared to the previous two years. On average, it now takes 9.1 months from start to finish.