NAHB Threatens Lawsuit Over Lack of Transparency on WOTUS Rule

After more than six months of silence since NAHB filed a Freedom of Information Act (FOIA) request with the federal government for documents seeking implementation of the waters of the United States (WOTUS) rule, NAHB has formally notified the U.S. Army Corps of Engineers that it intends to file a lawsuit unless the Corps immediately releases its records relating to the regulatory definition of WOTUS. 

This information is vital for builders and developers seeking federal permit approval because the Biden administration failed to provide a definition of a “relatively permanent” waterbody in its final WOTUS rule. This uncertainty regarding what waters are subject to federal jurisdiction sets the stage for continued federal overreach, bureaucratic delays during the wetlands permitting process, and regulatory confusion for home builders and land developers. 

NAHB has been calling on the Environmental Protection Agency (EPA) and the Corps to provide additional guidance to its field staff and the general public on the new rule to ensure clarity and action. 

On Sept. 8, 2023, EPA and the Corps published a final rule in the Federal Register revising the regulatory definition of WOTUS under the Clean Water Act to conform to the U.S. Supreme Court’s decision in Sackett v. EPA. 

In the final rule’s preamble, the agencies claimed that while the rule was “immediately effective,” the agencies may provide additional administrative guidance documents, memorandums and training materials for either the public or Corps district staff on how they intend to implement the conforming WOTUS regulatory definition. 

On Oct. 11, 2023, NAHB filed a FOIA request seeking various documents concerning the implementation of the Sept. 8 WOTUS regulatory definition. The Corps acknowledged receipt of NAHB’s request and said that because of the required coordination with other offices and agencies, it would take until Dec. 8, 2023, before a final response can be issued. No documents were provided on Dec. 8, and none has been forthcoming after NAHB conducted several follow-up requests. 

As a result of this continued non-compliance, NAHB sent a letter on May 1 to the assistant secretary at the Army for Civil Works notifying the agency that “unless a final determination is made within 10 days NAHB will file suit seeking declaratory relief establishing that the Corps has violated FOIA. NAHB will also seek injunctive relief directing the Corps to make a final determination regarding the FOIA request and to immediately produce any agency records improperly withheld from NAHB.” 

In addition to seeking legal action, NAHB will continue to meet with EPA and Corps officials to find ways to expedite the federal permitting process, offer pragmatic changes that maintain environmental protection of our nation’s waterways, and restore common sense and predictability to the federal wetlands permitting process.