Jerry Konter, chairman of the National Association of Home Builders (NAHB) and a home builder and developer from Savannah, Ga., issued the following statement on today’s decision by the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) to finalize its revised definition of “Waters of the United States” (WOTUS) that re-establishes a regulatory definition of WOTUS under the Clean Water Act:
“Rather than providing clarity and certainty for home builders and other affected stakeholders, this definition of WOTUS adds uncertainty and confusion to the regulatory process, raises housing costs and drastically increases federal overreach in the process.
“The rule makes it unclear whether the federal government will regulate certain roadside ditches, isolated ponds and channels while continuing its reliance on the significant nexus test. A major flaw of this final rule is its heavy reliance upon the significant nexus test to capture potentially all isolated and ephemeral features that were clearly excluded under the prior Navigable Waters Protection Rule. It is especially shortsighted and a waste of federal resources, given that the Supreme Court’s upcoming ruling under Sackett v. EPA is squarely focused on the legality of the significant nexus test for the agencies to assert federal jurisdiction under the Clean Water Act.
“And with America in the midst of a housing affordability crisis, this needless regulation will only make it more difficult and expensive for single-family and multifamily developers to find the developable land necessary to produce the new affordable housing units this nation desperately needs. The Biden administration has declared a housing affordability crisis, but if the administration is truly interested in knocking down barriers to affordable housing, it will direct the EPA and Corps to keep from implementing this rule until the Supreme Court issues its ruling in the Sackett case.”