The Biden administration’s new “waters of the United States” (WOTUS) rule is in effect in 48 states across the nation, but the rule could be short-lived because the Supreme Court’s upcoming ruling under Sackett v. EPA is squarely focused on the legality of the significant nexus test, which is a critical part of the final rule. The verdict could come anytime within the next few weeks.
Meanwhile, a Texas federal court has blocked the Biden WOTUS rule from taking effect in Texas and Idaho, and specifically cited serious concerns regarding the significant nexus text. NAHB and other groups had sought a nationwide injunction, but the judge in the case ruled that it would only apply to those two states.
There are also two other cases in Kentucky and North Dakota where states and businesses are challenging the rule. NAHB participated in the Texas lawsuit and has sought to intervene in North Dakota.
In practice, the significant nexus test has proven extremely difficult to apply consistently in the field, leaving developers and builders unable to discern for themselves which isolated wetlands, ephemeral streams or even human-made drainage features, like roadside ditches, are federally jurisdictional under the Clean Water Act.
The new WOTUS rule radically extends the areas in which home builders are required to get federal permits. This will result in continued regulatory barriers to affordable housing as single-family and multifamily developers struggle to find the developable land necessary to produce the new affordable housing units this nation desperately needs.
As of now, if a developer or builder approaches the U.S. Army Corps of Engineers seeking a jurisdictional determination or a federal wetlands permit, the now-effective final rule applies nationwide except for Texas and Idaho. If the same developer or builder had an approved jurisdictional determination under the prior Trump WOTUS rule but now wants to proceed and get a federal wetlands permit, they would have to move forward under the new Biden WOTUS rule.
On the legislative front, NAHB worked aggressively to get a bipartisan House resolution passed recently that would rescind the Biden WOTUS rule. A Senate vote on the same resolution is expected within the next week or two. If the Senate resolution is approved, NAHB will urge Biden to sign the measure into law. However, the president is expected to veto the measure if it reaches his desk.
NAHB will keep fighting on the legislative and legal fronts, and continue to call on the president to heed the will of the people by signing this resolution into law if it passes the Senate and directing his administration to craft a new WOTUS rule that restores common sense and predictability to the federal wetlands permitting process while maintaining environmental protection of our nation’s waterways.