A group of 16 housing groups, infrastructure, and agricultural organizations—including the NAHB, the National Multifamily Housing Council (NMHC), National Association of Realtors, Leading Builders of America, and Associated General Contractors of America—filed suit to challenge the recently released Waters of the United States (WOTUS) rule.
The U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Army announced a redefined and expanded definition of WOTUS under the Clean Water Act in early January 2023. At the time, the EPA said the updated regulation would strengthen fundamental protections for waters that are sources of drinking water.
At the time of the announcement, the NAHB said the WOTUS rule “radically” extended the areas in which home builders would be required to get federal permits and would result in continued regulator barriers to affordable housing. The NMHC called the definition a “federal overreach” and said the definition would expand the universe of properties required to seek federal permits to develop or redevelop housing.
In a statement accompanying the lawsuit, the NMHC said the apartment industry “strongly supports protecting our water resources” but “cannot support the changes issued by the EPA and Army Corps of Engineers.” According to the NMHC, the new rule fails to provide clarity for apartment firms and could create permitting delays, add development costs, and create additional legal risks “that will exacerbate the nation’s affordability crisis.”
The lawsuit, filed in the U.S. District Court for the Southern District of Texas Galveston Division, challenges the legality of the final WOTUS rule and states the rule imposes “impossible” and “unpredictable” burdens on land owners, users, and purchasers. The plaintiffs state the WOTUS rule should be held unlawful under the Administrative Procedure Act “because the Rule adopts an unworkable definition of WOTUS that conflicts with the CWA, the Constitution, and Supreme Court precedent.”
“Under the [WOTUS] rule, plaintiffs’ members will constantly be at risk that any sometimes-wet feature on their property will be deemed WOTUS by the [EPA and Department of the Army] using vague and unpredictable standards—making normal business activities in that area subject to criminal and civil penalities,” the lawsuit states.
