The EPA and U.S. Army Corps of Engineers missed an opportunity to provide regulatory certainty to home builders following a recent U.S. Supreme Court decision involving a controversial case.

The federal agencies issued their final Waters of the United States rule without providing a definition of a “relatively permanent” waterbody. Moreover, the rule fails to exclude all “ephemeral features” that only hold water following rainfall from federal jurisdiction.

The confusion about which waters are under federal jurisdiction — and which are not — will create bureaucratic delays during the permitting process for home builders and land developers, says the National Association of Home Builders.

The new WOTUS rule “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,” said NAHB Chairman Alicia Huey.

The final WOTUS rule followed the high court’s decision in Sackett v. EPA. Chantell and Michael Sackett, an Idaho couple, had objected when federal officials required them to get a permit before filling part of the property with rocks and soil.

Developers and agriculture groups have long sought to limit the federal government’s power to use the Clean Water Act to regulate waterways, arguing the law should cover fewer types of rivers, streams, and wetlands. Environmental groups have long pushed for a broader definition to protect more waters.

The court’s decision broke with a 2006 opinion by former Justice Anthony Kennedy. That opinion said wetlands were regulated if they had a “significant nexus” to larger bodies of water.

WOTUS Map

One Rule for 23 States, Another for 27 States

Even with the Supreme Court verdict and the new WOTUS rule, developers face different federal oversight depending on where they’re building.

“Several federal district courts had already issued a preliminary injunction against the Biden WOTUS rule released in January, which now prevents the agencies from implementing the recent WOTUS amendments issued on Aug. 29. This means the revised WOTUS definition will only apply in 23 states, the District of Columbia and the U.S. Territories,” said the NABH.

California is among the 23 states operating under the amended regulation.

No Public Input

Business groups noted that the revised WOTUS rule was made without public input from stakeholders.

“This revised rule does not adequately comply with Supreme Court precedent,” said Courtney Briggs, chair of the industry group Waters Advocacy Coalition in a statement. “Even worse, the agencies blocked public input and engagement in the revision process.”

Perhaps that was because the WOTUS rule had to conform to the Supreme Court ruling in the Sackett case. Typically, a rule is proposed, the public weighs in and then the federal government releases a final version. This rule changed existing policy to align with the court’s verdict.

Read more at this link.

(Associated Press contributed to this article.)