The National Association of Home Builders (NAHB) informed Congress today about the adverse effects of the Biden administration’s latest interpretation of the waters of the United States (WOTUS) rule on housing affordability.
The Supreme Court's decision last year in Sackett v. Environmental Protection Agency (EPA) redefined the scope of the Clean Water Act, requiring additional regulatory guidance from the EPA and the U.S. Army Corps of Engineers for builders and developers.
“The federal agencies are not faithfully adhering to the Supreme Court’s holdings, and the regulated public has been stiff-armed on implementation guidance,” testified Vince Messerly, president of the Streams and Wetlands Foundation, a non-profit wetlands mitigation bank based in Ohio, before a congressional panel.
As a mitigation banker collaborating with home builders to navigate the Clean Water Act’s Section 404 permitting process, Messerly highlighted that uncertainties and delays in permitting are raising housing costs and causing developers to abandon projects amid an ongoing housing affordability crisis.
“The residential construction industry and others in the regulated community continue to experience prolonged and opaque permitting processes, which makes it more difficult for home builders to provide homes or apartments at a price point attainable for most households,” said Messerly. “Consequently, this unpredictable regulatory environment that builders and developers are forced to operate under will make home building more inefficient and costly and ultimately worsen our nation’s housing crisis.”
The Supreme Court’s Sackett decision clarified that federal authority only extends over relatively permanent waterbodies. However, according to NAHB, the Biden administration has not provided a clear definition of a “relatively permanent” waterbody. Additionally, their revised WOTUS rule does not exclude all “ephemeral features,” which only contain water following rainfall events.
By using undefined terms such as “relatively permanent water body” and “continuous surface connection” to link isolated wetlands to WOTUS via ditches, swales, and pipes, Messerly stated that “it is evident that the agencies are not faithfully implementing the Supreme Court’s directives. If home builders and the residential construction industry cannot understand the regulatory framework under which to operate, how can we expect to achieve housing production to address our national affordability crisis?”
NAHB is urging Congress to consider improvements to the Clean Water Act Section 404 permitting process if federal agencies do not define terms like relatively permanent water or continuous surface connection. Recommendations include:
- Excluding ephemeral features that flow only in response to rainfall from federal jurisdiction.
- Exempting man-made features such as pipes, ditches, culverts used to connect isolated wetlands.
- Ensuring timely responses for jurisdictional determinations.
- Preventing changes in WOTUS definitions from invalidating previously approved jurisdictional determinations during their lifespan.