Clean Water Act (CWA) / Waters of the U.S. (WOTUS) Updates

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The Clean Water Act (CWA) protects the quality of the nation’s waterways and regulates pollution.

While the apartment industry strongly supports protecting our water resources, the EPA has proposed a number of onerous regulations under the CWA that would significantly restrict both new apartment construction and redevelopment activities. These constraints would exacerbate the nation’s struggle to meet growing rental demand.

Read on for the latest legislative, regulatory and industry actions related to this topic.

March 21, 2023

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Judge Blocks WOTUS Rule Based on NMHC-Supported Lawsuit, Congressional Overturn Attempt Moves to Senate

On March 19, a federal judge blocked implementation of the WOTUS Rule in Texas and Idaho based on legal action initiated by NMHC and a coalition of other industry stakeholders. 

What This Means: The Court based the decision on numerous factors namely that specific “aspects of the 2023 Rule make the plaintiffs particularly likely to succeed on the merits” and that “there is little public interest or efficiency gained” from enforcing a rule that could be significantly impacted by the upcoming Supreme Court ruling in Sackett. Similar efforts to temporarily suspend the rule are pending in lawsuits that could impact 25 other states.

In addition, earlier this month, the U.S. House passed a resolution under the Congressional Review Act (CRA) disapproving the WOTUS Rule in a bipartisan vote.  The resolution is now awaiting Senate action, and if enacted, would block implementation of the rule.  However, a veto is expected should the measure reach the President’s desk.

Learn more about the recent legal action >>>

March 2, 2023

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House Transportation and Infrastructure Committee Moves to Overturn New WOTUS Rule

On February 28, the House Transportation and Infrastructure Committee approved a joint resolution to overturn the new WOTUS rule. NMHC filed a comment letter in support of this effort.

Diving Deeper: In addition, NMHC continues to seek legal relief against implementation of a flawed WOTUS rule. After filing an initial lawsuit challenging WOTUS in Texas, NMHC has sought to intervene in a parallel, 24-state led lawsuit filed in North Dakota. In total, 27 state Attorneys General have now filed suit seeking invalidation of the WOTUS Rule.

Check out the Committee’s joint press release and our coalition letter of support.

Feb. 10, 2023

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Congress Moves to Overturn WOTUS

Both the House and Senate have introduced Congressional Review Act (CRA) resolutions - a tool that allows Congress to overturn certain rules issued by federal agencies - urging disapproval of the new WOTUS Rule.

What This Means: While over 150 Members of Congress and 49 Senators support the measures, the effort is unlikely to progress since it would require the President's approval. The resolutions echo the concerns raised by NMHC and a broad coalition of industry stakeholders that the current Rule is flawed and unduly burdensome.
NMHC's Viewpoint: NMHC voiced strong support for a hearing held this week by the House Committee on Transportation and Infrastructure on the CRA action and stakeholder impacts of the WOTUS Rule.

Additionally, NMHC continues to pursue legal action to compel the Administration to fix the Rule. We joined with a coalition of industry groups to request a preliminary injunction, urging the Court to halt implementation of the new rule nationwide while litigation over the validity of the rule proceeds earlier this week. The Court is expected to hold a hearing on the matter in mid-March.

Learn more by reading our Preliminary Injunction Motion.

Jan. 19. 2023

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NMHC Files Legal Challenge to New WOTUS Rule

NMHC joined 16 other housing groups, infrastructure and agricultural organizations, among others, in filing suit yesterday to challenge the recently released Waters of the U.S. (WOTUS) rule.

What This Means: Although NMHC weighed in multiple times during the rulemaking process, our concerns are not reflected in the final rule—which is why we feel it is imperative to pursue this legal action.

As noted in a statement published earlier this month (highlighted below), the Rule fails to provide much-needed clarity for apartment firms and greatly expands the universe of properties, including many with only a tenuous relationship to a body of water, required to seek very expensive federal permits to develop or redevelop housing.
NMHC's Viewpoint: Further, we believe this lawsuit is the only remaining tool available to direct the agencies to develop reasonable rules that protect natural resources while supporting the housing needs of millions of individuals and families throughout the country.

Learn more by reading our lawsuit text here and our press statement here.

Jan. 3, 2023

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EPA Finalizes New WOTUS Rule

The Biden Administration issued a final rule revising the definition of the WOTUS rule under the CWA with potentially significant harm to the real estate sector.

What This Means: This rule is designed to repeal the 2020 Navigable Waters Rule and would establish a more stringent standard expanding federal jurisdiction over certain waters.

Moreover, the release of this Rule ignores a forthcoming Supreme Court decision that directly relates to this issue. In October, the Court heard arguments in Sackett v. EPA, which specifically questions federal jurisdiction under the CWA.
Industry Impact: While the apartment industry strongly supports protecting our water resources, expanding the scope of the CWA would result in undue federal regulatory requirements for apartment firms. These additional hurdles would create delays, add costs and ultimately dampen critically-needed housing construction and development. In addition, implementation of this new rule prior to the release of the Sacket v. EPA court opinion will require businesses to spend significant time and resources in compliance efforts that may prove inconsistent with the Supreme Court’s decision.
NMHC's Viewpoint: NMHC and NAA released a press release expressing our disappointment in this regulation. NMHC also joined the Waters Advocacy Coalition group in pushing back on the release.

Read our Press Release >>>

Access the Final Rule >>>

Feb. 4, 2022

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Supreme Court Takes Another Look at Waters of the U.S. (WOTUS) Rule

The latest twist in the decades long saga to define the scope of waters subject to federal jurisdiction came in late January when the Supreme Court agreed to take up Sackett v. EPA, a case they first heard in 2006.

What This Means: The timing of the Courts action coincides with EPA and the Army Corps’ pending rulemaking to repeal the 2020 Navigable Waters Rule although arguments on the matter will not be heard until next fall with a decision likely to be issued in 2023.

The Administration has also teed up a second part to the rulemaking to refine elements related to the waters subject to federal jurisdiction as it existed prior to 2015. Prior Supreme Court decisions have contributed to regulatory uncertainty for the property owners – specifically regarding whether the Act’s requirements beyond waters that are navigable extend to wetlands with a “continuous surface connection” or a “significant nexus” (impact on water quality) with a navigable water.
NMHC's Viewpoint: NMHC, as part of the Waters Advocacy Coalition, is preparing to submit comments on February 7 critical of the Administration’s latest proposal.

Dec. 9, 2021

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EPA Publishes Revised Definition of Waters Subject to Jurisdiction Under the Clean Water Act

A revised definition of waters subject to jurisdiction under the CWA/WOTUS was published by Environmental Protection Agency (EPA) and the Army Corps in the December 7, 2021, Federal Register.

What This Means: Under the rule, WOTUS includes: traditional navigable waters, interstate waters, and the territorial seas, and their adjacent wetlands; most impoundments; tributaries to traditional navigable waters, interstate waters, the territorial seas, and impoundments that meet either the relatively permanent standard or the significant nexus standard; wetlands adjacent to impoundments and tributaries, that meet either the relatively permanent standard or the significant nexus standard; and ‘‘other waters’’ that meet either the relatively permanent standard or the significant nexus standard.
Industry Impact: This significantly expands waters that could be subject to regulatory hurdles as part of the development process.

Read the Final Rule to Learn More >>>

Nov.19, 2021

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Biden Administration Takes Next Step to Rescind NWP Rule

The U.S. EPA and the Department of the Army (Army Corps) have taken the next step in a rulemaking to rescind the current Navigable Waters Rule (NWP) by issuing a proposed rule that reinstates the definition of “waters of the United States” as it was held prior to 2015.

Read the Proposed Rule to Learn More >>>

Aug. 10, 2021

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Biden Administration Looks to Appeal Navigable Waters Protection (NWP) Rule

The Biden Administration has indicated that it will move quickly to repeal and replace the Navigable Waters Protection (NWP) rule, which it claims has curtailed federal protection of many streams and wetlands.

What This Means: The announcement from EPA means that the NWP will not stay in effect while EPA and the Army Corps of Engineers undertake a new rulemaking procedure. The law governing wetlands and other related issues will revert to a 1986 rule that triggered several of the cases heard by the Supreme Court.
Industry Impact: The EPA has announced that it will hold a series of public meetings around the country and consider suggestions for the revised rule to be submitted by September 3.
NMHC's Viewpoint: NMHC has joined with colleague organizations in the Waters Advocacy Coalition to request a 30-day extension in order to prepare comments for this latest round of rulemaking. The comments will include examples that illustrate the impact on regulated communities where federal jurisdiction over private land hindered economic outcomes. These case studies also highlight the negative impact recent rulings have had on the development of affordable housing.

Feb. 6, 2020

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EPA Releases Revised WOTUS Rule Favorable to Apartment Industry

The Environmental Protection Agency (EPA) has released a revised rule that clarifies federal regulation over waters under the Clean Water Act (CWA).

What This Means: The Navigable Waters Protection rule asserts jurisdiction over waters and wetlands that “maintain a sufficient surface water connection to traditional navigable waters and territorial seas.” It also addresses Congress’s overall direction to maintain the integrity of the nation’s waters while preserving the sovereignty of states over their lands and water resources.
Industry Impact: The soon-to-be final rule incorporates a tighter construct to determine the extent of waters that will be subject to federal jurisdiction. As an example, streams that only flow in response to rainfall and most wetlands without surface water connections to larger waterways will no longer be subject to federal regulation – although they may be regulated under state law.
NMHC's Viewpoint: NMHC and NAA support strong protections of our nation’s water resources to guide resilient development and are pleased with the EPA’s decision to enact a rule that accomplishes just that.

Read the Final Rule to Learn More: Navigable Waters Protection Rule >>>

Paula Cino pcino@nmhc.org

Sarah Rahman srahman@nmhc.org