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NAHB Chairman Alicia Huey issued a letter this week to the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) requesting them to finalize a revised regulatory definition of “waters of the United States” (WOTUS) that clarifies the limits of federal jurisdiction under the Clean Water Act (CWA) consistent with the U.S. Supreme Court’s holdings in Sackett v. EPA.

“Since the Sackett decision was announced on May 25, 2023, the Corps headquarters has placed a nationwide freeze on processing requests for approved jurisdictional determinations (AJDs) under the CWA 404 federal wetland permitting program,” Chairman Huey stated in her letter, “ the current nationwide halt on AJDs would remain in place until the agencies propose a revised WOTUS sometime prior to Sept. 1, 2023. Halting AJDs leads to permitting delays and places another barrier on the nation’s home builders’ ability to provide safe, decent and affordable housing.”

With no post-Sackett interpretive guidance more than a month following the SCOTUS decision, home builders and developers face three options:

• Attempt to determine whether their activities require a CWA Section 404 wetlands permit and risk subsequent CWA enforcement action if they interpret Sackett differently than the federal regulators.
• Accept a preliminary jurisdictional determination (PJD), allowing federal regulators to assume that the wetlands or water features on or near the property are jurisdictional in order to process requested CWA Section 404 permits.
• Wait until the agencies figure how to address Sackett to take action.

“These options are extremely frustrating and costly to the U.S. home building industry, and none is appropriate or acceptable,” Huey noted.

The agencies intend to make changes to the 2023 revised definition of WOTUS consistent with the Sackett ruling and issue a direct final rule by Sept. 1, 2023.

But, as Huey stated, “Land acquisition, permit processing and home building cannot be paused until Sept. 1; we desperately need interim guidance from the agencies now.”

NAHB supports the agencies’ plan to promulgate a new WOTUS regulatory definition consistent with Sackett, but there is an immediate need for interim regulatory guidance to lift the nationwide suspension of issuing AJDs and provide affected landowners, including home builders, certainty over whether their lands may be subject to CWA jurisdiction.

For more information, visit nahb.org.