In the closing days of 2022, the Biden administration released the final definition of “Waters of the United States” (WOTUS), expanding which land use projects require federal permitting and review.
“When Congress passed the Clean Water Act 50 years ago, it recognized that protecting our waters is essential to ensuring healthy communities and a thriving economy,” said EPA Administrator Michael S. Regan.
“Following extensive stakeholder engagement, and building on what we’ve learned from previous rules, EPA is working to deliver a durable definition of WOTUS that safeguards our nation’s waters, strengthens economic opportunity, and protects people’s health while providing greater certainty for farmers, ranchers, and landowners.”
New WOTUS Definition
The new definition reinstitutes the WOTUS rule in place prior to 2015, and includes any water, including wetlands, found to have a “significant nexus” to other waters. The definition also states that “adjacent wetlands are jurisdictional if they meet either the relatively permanent standard or the significant-nexus standard, or where the wetland is adjacent to a traditional navigable water, the territorial seas, or an interstate water.”
According to Nick Erickson, senior director of housing policy for Housing First Minnesota, the WOTUS definition change will have serious impacts on housing. “The WOTUS rule has long been considered imperfect and is one of the few roadblocks to housing affordability and access that come directly from the federal government,” said Erickson. “By reverting to the pre-2015 definition, more wetlands will fall under federal jurisdiction, requiring federal reviews with added costs to homebuyers.”
Two Suits Filed
Even before the new WOTUS rule takes effect on March 30, multiple legal challenges have already begun.
A coalition of national trade organizations and the State of Texas filed separate federal legal challenges on Jan. 18, 2023, contesting the EPA’s revised definition of WOTUS, which regulates which land use projects require federal permits.
The initial suit, brought by the State of Texas, alleges the final WOTUS definition leaves too much open to interpretation. In the complaint, the state of Texas said the revised WOTUS rule “lacks clarity, leaving those wishing to identify the ambit of federal power over dry land or minor water features at the mercy of an expensive, vague and arbitrary analysis, lest they face a staggering criminal or civil penalty.”
Texas also said that EPA should have waited for the outcome of a pending Supreme Court challenge before pushing through a new rule.
A second challenge, also filed on Jan. 18, was brought by 18 trade associations across agricultural, housing and infrastructure organizations. Industry groups National Association of Realtors, the National Multifamily Housing Council, and the National Association of Home Builders (NAHB) joined the lawsuit.
“By vastly increasing federal regulatory control over private property, the new WOTUS rule needlessly increases housing costs,” said Jerry Konter, chairman of NAHB. “Because the agencies have failed to craft a balanced rule, we have filed this lawsuit to seek a common-sense approach that will protect America’s waterbodies while also promoting job growth, economic development and housing.”
More legal challenges are expected. In a statement, North Dakota Gov. Burgum expressed support for his state taking similar action.
“It’s disappointing that the Biden administration is doubling down on this overreaching policy,” Burgum said in the statement. “The EPA’s reworked version of WOTUS has the same problems as its predecessor, violating landowner rights and creating confusion for farmers, ranchers and industry by adding red tape and erroneously classifying almost every stream, pond and wetland as a federally managed water.”
Awaiting Supreme Court Decision
The lawsuits filed in January are not the only legal challenge to the WOTUS rule.
In October, the nation’s highest court heard arguments in Sackett v. EPA, a case that challenges the EPA’s determination that wetlands classify as “Waters of the United States.”
A decision from the Supreme Court in Sackett is expected to be released by March when the new WOTUS definition is likely to take effect.