NAHB Urges Against Using Invalidated WOTUS rule as New Rule Baseline
Following the U.S. Supreme Court’s Sackett ruling in May and its sweeping rejection of several core aspects of the 2023 Revised Definition of Waters of the United States (WOTUS), the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) made two announcements:
- First, the agencies directed all Corps district offices to cease processing new requests for approved jurisdiction determinations (AJDs) and issuing new AJDs and Clean Water Act (CWA) 404 permits until the agencies finalize a new WOTUS regulatory definition that comports with the Sackett ruling.
- Second, the agencies announced their intention to issue a revised WOTUS regulatory definition by Sept. 1, 2023, using a rarely used rulemaking process known as a direct final rulemaking process.
NAHB objected to the agencies’ decision to cease processing new AJDs and underlying CWA 404 permits and urged the agencies to immediately develop interim WOTUS regulatory guidance consistent with the Sackett ruling. The amended final rule, NAHB noted, should follow the normal and routine public notice and comment process that typifies the federal rulemaking process.
Instead, the agencies have announced that, by using a good cause exemption under the Administrative Procedure Act (APA), they will not publish a proposed rule, nor take public comment before finalizing the rule. The good cause exemption permits agencies to forgo notice and comment requirement and bypass its 30-day publication requirement if good cause exists.
More from NAHB, including an update on NAHB’s concerns about using the recently invalidated 2023 rule as a base text for the upcoming rule.