NAHB, Builders Score Big Win in SCOTUS Decision on WOTUS
In a major victory for NAHB, builders, developers and property owners, the Supreme Court on May 25 issued a unanimous decision in Sackett v. Environmental Protection Agency that will force the Biden administration to overhaul its “waters of the U.S.” (WOTUS) rule and ultimately provide builders and developers more certainty in the federal permitting process.
“The decision represents a victory against federal overreach and a win for common-sense regulations and housing affordability,” said NAHB Chairman Alicia Huey.
The Sackett case revolved around the government regulation of a wetland near a roadside ditch. The government believed that it had Clean Water Act (CWA) authority over the wetland because the government claimed that this wetland, in combination with other nearby wetlands, had a “significant nexus” to Priest Lake, Idaho.
The significant nexus test that establishes federal jurisdiction over minor waterbodies such as isolated wetlands or human-made ditches is a critical part of the Biden administration WOTUS rule.
The Supreme Court essentially rejected the significant nexus test and the EPA’s reasoning. Five justices joined the opinion of the court, which began its analysis by explaining that the CWA’s use of the term “waters” encompasses only relatively permanent, standing or continuously flowing bodies of water that form geographic features that are ordinarily described as streams, oceans, rivers and lakes.
With respect to wetlands, the Supreme Court explained that in order for a wetland to be regulated under the Clean Water Act, it must have “a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands.”