New WOTUS Rule Further Muddies the Waters
The Environmental Protection Agency and U.S. Army Corps of Engineers have issued an amended final waters of the United States (WOTUS) rule in the aftermath of the recent U.S. Supreme Court decision in the case of Sackett v. EPA.
Unfortunately, the revised WOTUS rule — which was made with no public input from interested stakeholders — represents a blow to housing affordability.
The Supreme Court’s Sackett decision made clear the federal government only has authority over relatively permanent waterbodies. But the Biden administration failed to provide a definition of a “relatively permanent” waterbody. Furthermore, the revised WOTUS rule fails to exclude from federal jurisdiction all “ephemeral features,” which only possess water following a rainfall event.
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.
Immediately after the rule was issued on Aug. 29, NAHB Chairman Alicia Huey issued an official statement saying the new regulation “will directly 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.”
In short, the new WOTUS rule is a missed opportunity to provide regulatory certainty to the home building industry.