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 for homebuyers.”
The National Association of Home Builders was also displeased with the new definition. “Rather than providing clarity and certainty for home builders and other affected stakeholders, this definition of WOTUS adds uncertainty and confusion to the regulatory process, raises housing costs and drastically increases federal overreach in the process,” said Jerry Konter, chairman of NAHB.
The new definition will take effect 60 days after it has been published in the Federal Register, As of Jan. 4, it has not yet appeared in the Federal Register.
WOTUS Rule In the Hands of Top Court
The final definition from the EPA comes as the United States Supreme Court is contemplating the WOTUS rule’s future. 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 is expected to be released in the first quarter of 2023, around the time the WOTUS definition goes into effect.