Revised Definition of WOTUS Advances to Final Review

On Sept. 12, the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers advanced the revised Clean Water Act (CWA) definition of “waters of the United States” (WOTUS) rule to the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) for final review. Per Executive Order 12866, OIRA has 90 days to review the proposed final rule before publication.

NAHB will request a meeting with the White House’s OIRA staff and representatives from the agencies to discuss NAHB’s concerns with the proposed WOTUS rule. EPA’s political leadership has already stated they expect to finalize the proposed WOTUS rule by year’s end. Once published, the proposed rule will rescind the Trump administration’s WOTUS regulatory definition under the 2020 Navigable Waters Protection rule.

This final rule will state when the new WOTUS regulatory definition will become effective. Currently, the agencies are enforcing the pre-2015 rules including guidance, following U.S. Supreme Court’s wetlands rulings under Rapanos and SWANCC.

The pending rule at OIRA stems from the revised definition of WOTUS published by the agencies in December 2021. NAHB submitted public comments on the revised definition in February 2022.

In short, if the agencies do not alter the revised definition, they will return to a problematic WOTUS regulatory definition that requires them to perform problematic “significant nexus tests” for most non-navigable, isolated and ephemeral features before providing landowners with their requested CWA jurisdictional determinations. NAHB members’ prior experiences with the agencies’ application of the significant nexus test during jurisdictional determinations have proven to be a near limitless review process that, more likely than not, will result in the agencies finding federal jurisdiction.

Meanwhile, the U.S. Supreme Court is expected to hear oral arguments of Sacketts v. EPA on Oct. 3. The question presented to the Supreme Court is, “Should Rapanos be revisited to adopt the plurality's test for wetlands jurisdiction under the Clean Water Act?” The plurality opinion under Rapanos offered by the late Justice Scalia argued that only those wetlands with a continuous surface water connection to regulated waters should be considered jurisdictional and may be regulated under the CWA. The agencies seem likely to finalize a proposed WOTUS definition that relies upon the significant nexus test, despite the Supreme Court’s decision to hear the Sacketts v. EPA wetlands case.

In March, all 50 Republican senators and more than 200 House Republican members sent a letter to EPA Administrator Michael Regan urging the agencies not to finalize the proposed WOTUS definition until after the Supreme Court issued a ruling in Sacketts. Depending on the outcome of the court’s ruling under the Sacketts case, the agencies could have to issue supplemental guidance or propose another WOTUS regulatory definition to comply with the court’s ruling.

Learn more about the recent steps taken by the agencies on nahb.org.