This post was updated on March 9.
In a move supported by NAHB, all 50 Republican senators have signed onto a letter to request that the Environmental Protection Agency halt its “waters of the United States” (WOTUS) rulemaking while the Supreme Court considers a case brought by Idaho couple Chantell and Mike Sackett on the Clean Water Act (CWA).
More than 200 GOP House members sent a similar letter to EPA Administrator Michael Regan on March 8 urging the agency and the U.S. Army Corps of Engineers (Corps) to halt rulemaking until the Supreme Court rules on the case.
“Any future rulemaking must be based on fully informed legal guidance,” the House letter stated. “The Agencies’ goal of developing a lasting rule can only be achieved if appropriate legal standards are met, and it is premature to develop a new rule until the (Supreme) Court’s Sackett opinion is issued.”
The Sackett case's focus on legality of the “significant nexus” standard used by federal regulators to assert federal jurisdiction over any non-navigable, isolated, wetlands and even intermittent and ephemeral streams and ditches could have major implications for the CWA's permitting and enforcement programs.
The Senate letter stated that “proceeding with the rulemaking at this time, despite the pending litigation and potential influential verdict, will only deepen uncertainty within the regulated community.”
Like NAHB, House and Senate GOP lawmakers are also very critical of the WOTUS rule as it is currently proposed.
“Given the severe financial penalties stakeholders could face for conducting standard agricultural or other land development practices under the proposed rule, family farmers and ranchers are understandably alarmed by the administration’s attempted land grab,” the Senate lawmakers stated.
“The rule takes a new and expansive approach to the definition of WOTUS, creating additional costs and burdens for regulated stakeholders,” House lawmakers told the EPA administrator.
The EPA and Corps announced that as of Sept. 3, the agencies have halted implementation of the Navigable Waters Protection Rule (NWPR) and are interpreting WOTUS consistent with the pre-2015 regulatory regime until further notice.
This unilateral decision by the agencies — without public input — means that landowners must immediately follow the federal definition of WOTUS that existed prior to both the Trump and Obama administration's WOTUS rules.
While the agencies reiterated their commitment to change the regulatory definition of WOTUS under the CWA announced in June, that effort is expected to take more than six months to complete.
NAHB Senior Officers, members and HBA staff testified at a series of hearings throughout last August and more recently last month to voice their support for retaining the NWPR's requirement that jurisdictional features have a direct surface water connection to a navigable water, as well as other readily identifiable landscape features upon which the scope of federal jurisdiction is based.
By contrast the proposed WOTUS rule would revert back using the same controversial, cumbersome, and inconsistently applied “significant nexus” approach that the Supreme Court has identified as warranting legal review under the Sackett case.
The regulated community faces significant regulatory uncertainty in light of the agencies' decision, as sections of the pre-2015 rules have been found unlawful by the courts, and the guidance documents provided by the agencies have been superseded by more current guidance.
NAHB is exploring all options to limit this federal overreach, as well as the challenges the EPA’s and the Corps’ proposed rule's approach will create. We will continue to keep members updated on further developments and provide additional guidance once it becomes available.
Meanwhile, builders who have received, or are in the process of applying for federal wetlands permits or jurisdictional determinations, are encouraged to visit nahb.org/wotus to access NAHB's guidance to frequently asked questions to help navigate the current landscape.