The NAHB continues to advocate on behalf of builders in regards to a perceived lack of clarity on the waters of the United States (WOTUS) rule. The association recently spoke with Congress , sharing how the latest interpretation of the rule has “further muddied the regulatory process” and “exacerbated the housing affordability crisis.”
Among chief concerns with the WOTUS rule is that uncertainties and delays due to unclear guidance in the Clean Water Act’s Section 404 permitting process is leading to rising housing costs. In some cases, developers and builders are abandoning projects, contributing to the housing shortage and related affordability challenges.
Uncertainty surrounding WOTUS dates back to the Sackett v. EPA supreme court decision in May 2023, which determined certain parts of the old WOTUS rule invalid. The EPA and U.S. Army Corps of Engineers issued an amended rule that the NAHB felt was unclear, stating the lack of clarity of certain definitions could result in “continued federal overreach, bureaucratic delays during the wetlands permitting process, and continued regulatory confusion” for builders.
In particular, the association felt there was a particular murkiness on what constitutes “relatively permanent” water bodies or “continuous surface connections.” The NAHB also argues the revised WOTUS rule fails to exclude “ephemeral features”—which only possesses water following a rainfall —from federal jurisdiction.
The NAHB is calling for Congress to consider several “improvements” to the Clean Water Act Section 404 permitting process, including providing clear definitions for “relatively permanent water” or “continuous surface connection.” The association also suggests lawmakers identifying features that cannot be considered either of the two terms, which should include man-made features, groundwater, and ephemeral features.
The NAHB also called for Congress to acknowledge that regulatory changes to the definition of WOTUS should not invalidate an approved jurisdictional determination during its lifespan. Many builders who have had approved jurisdictional determinations for projects have had their validity denied not due to changes in environmental conditions, but due to changes in a new administration's priorities, according to the NAHB.
