Following efforts from interest groups from the housing, infrastructure, and agricultural sectors, the Senate approved a resolution against the Biden administration’s Waters of the United States (WOTUS) rule under the Clean Water Act (CWA).
The Senate’s 53-43 vote follows a similar vote from the House of Representatives passing the Congressional Review Act (CRA) joint resolution of disapproval, which would rescind the WOTUS rule.
“[The bipartisan Senate vote] sends a strong message to the administration and American people about the damaging effects of federal overreach,” NAHB chairman Alicia Huey said in a statement following the vote. “The Biden WOTUS rule does little to strengthen our nation’s water resources, but it does radically extend the areas in which home builders are required to get federal wetlands permits by making human-made ditches and isolated ponds on private property subject to federal jurisdiction. Adding uncertainty and delay to the federal permitting process needlessly raises housing costs at a time when the nation is already facing a housing affordability crisis.”
The CWA prohibits the discharge of pollutants from a point source into “navigable waters” unless otherwise authorized, and WOTUS is a threshold term intended to establish the geographic scope of federal jurisdiction under the CWA. The rule would add an additional step in the regulatory process for builders and developers, requiring them to determine whether isolated wetlands, ephemeral streams, or human-made drainage features such as roadside ditches are “federally jurisdictional” under the CWA. As part of the rule’s “significant nexus test,” a federal regulator determines whether a feature “significantly affects the chemical, physical, or biological integrity of a traditional navigable water.”
Efforts to block the updated WOTUS rule have extended beyond Congress, with several states and industry interest groups—including the NAHB and the National Multifamily Housing Council (NMHC)—pursuing legal action to stop the rule from coming into effect nationwide.
Last week, a federal judge in Texas blocked the WOTUS rule from taking effect in Texas and Idaho, but denied efforts to stop the rule from coming into effect nationwide. At least 25 other states, including West Virginia, Kentucky, and North Dakota, have filed complaints and motions for preliminary injunctions against the WOTUS rule.
The joint efforts of a lawsuit, including 16 housing, infrastructure, and agriculture organizations, argued the U.S. Environmental Protection Agency (EPA) and U.S. Department of the Army should wait for the upcoming Sackett v. EPA decision from the U.S. Supreme Court before implementing new rules.
The Sackett v. EPA case is focused on the legality of the significant nexus test of the new WOTUS rule, a critical element of the final rule. A decision in favor of Sackett could significantly narrow the scope of the EPA’s authority under the CWA and send agencies back to redo major elements of WOTUS.
Both the NAHB and NMHC have previously argued that approving the new WOTUS rule prior to a final decision in the Sackett case could cause businesses to invest time and resources to comply with a rule that may be inconsistent with the Supreme Court’s decision.
Despite the votes from the House and the Senate in opposition to the updated WOTUS rule and efforts in the courts to oppose the rule, President Biden is widely expected to veto the CRA.
“Congress has firmly spoken out against this rule, and a Supreme Court verdict in the pending case of Sackett v. EPA could force the administration to scrap the worst parts of its WOTUS rule and return to the drawing board,” Huey said. “The president needs to heed the will of the people by signing this [CRA] resolution into law and directing his administration to craft a new WOTUS rule that restores common sense and predictability to the federal wetlands permitting process while maintaining environmental protection of our nation’s waterways.”
The EPA said the final rule returns WOTUS to a “reasonable and familiar framework” and establishes limits “that appropriately draw the boundary of waters subject to federal protection.” While previous definitions put forth by the Obama and Trump administrations were undone through litigation, the Biden administration’s WOTUS rule and definition has been presented as a “compromise” that is likely to withstand legal challenges.
In opposition to the rule, the NAHB said it believes the WOTUS definition will negatively impact affordability and regulatory certainty, while the NMHC argued the definition will cause permitting delays, add development costs, and add additional hurdles for development. The NAHB said the critical “significant nexus test” in the updated rule has proven “extremely difficult to apply consistently in the field” and the rule “radically extends” the areas in which home builders are required to get federal permits.