On December 30, 2022, the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) announced the final “Revised Definition of ‘Waters of the United States'” rule. Several industry associations were dissatisfied with the ambiguous wording.
The National Association of Manufacturers (NAM) issued the following statement:
Following the release of the Environmental Protection Agency’s proposed new Waters of the United States rule, National Association of Manufacturers Senior Vice President of Policy and Government Relations Aric Newhouse issued the following statement:
“The EPA is unnecessarily rewriting critical permitting standards and tossing aside Supreme Court precedent in the process. This moving target frustrates efforts to expand domestic manufacturing and create well-paying jobs. Manufacturers cannot invest with confidence when the rules keep changing.
“Manufacturers need a sensible WOTUS proposal that provides permitting certainty and allows the industry to continue leading on environmental stewardship.”
In 2023, the Supreme Court is expected to issue a decision in Sackett v. EPA, a case that will determine the jurisdiction of the Clean Water Act and all regulations within its authority. Previously, the NAM submitted multiple sets of comments regarding the 2015 WOTUS rule to better inform policymakers. In addition, the NAM supported the 2017 executive order instructing the EPA to rescind the rule, and the NAM Legal Center had been in active litigation against the rule starting in 2015. The legal battle included a unanimous victory for the NAM at the U.S. Supreme Court on a key procedural issue, and in 2019, federal judges invalidated the rule.
The National Association of Home Builders (NAHB) issued the following statement:
Jerry Konter, chairman of the National Association of Home Builders (NAHB) and a home builder and developer from Savannah, Ga., issued the following statement on today’s decision by the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) to finalize its revised definition of “Waters of the United States” (WOTUS) that re-establishes a regulatory definition of WOTUS under the Clean Water Act:
“Rather than providing clarity and certainty for home builders and other affected stakeholders, this definition of WOTUS adds uncertainty and confusion to the regulatory process, raises housing costs and drastically increases federal overreach in the process.
“The rule makes it unclear whether the federal government will regulate certain roadside ditches, isolated ponds and channels while continuing its reliance on the significant nexus test. A major flaw of this final rule is its heavy reliance upon the significant nexus test to capture potentially all isolated and ephemeral features that were clearly excluded under the prior Navigable Waters Protection Rule. It is especially shortsighted and a waste of federal resources, given that the Supreme Court’s upcoming ruling under Sackett v. EPA is squarely focused on the legality of the significant nexus test for the agencies to assert federal jurisdiction under the Clean Water Act.
“And with America in the midst of a housing affordability crisis, this needless regulation will only make it more difficult and expensive for single-family and multifamily developers to find the developable land necessary to produce the new affordable housing units this nation desperately needs. The Biden administration has declared a housing affordability crisis, but if the administration is truly interested in knocking down barriers to affordable housing, it will direct the EPA and Corps to keep from implementing this rule until the Supreme Court issues its ruling in the Sackett case.”
Also, Associated Builders and Contractors (ABC) issued this statement:
Associated Builders and Contractors today issued the following statement from Vice President of Regulatory, Labor and State Affairs Ben Brubeck on the U.S. Army Corps of Engineers and U.S. Environmental Protection Agency’s final rule revising the definition of “waters of the United States”:
“By repealing the Navigable Waters Protection Rule’s commonsense definition of ‘waters of the United States’ and returning Clean Water Act enforcement to unpredictable, case-by-case determinations of jurisdiction, the Biden administration’s final WOTUS rule is a significant step back in establishing unambiguous water quality protections that provide clarity for contractors. This rule will delay critical infrastructure projects and raise costs for the construction industry and taxpayers without providing meaningful improvements to water quality.
“The fact that the Army Corps and EPA have issued this rule while the U.S. Supreme Court case on CWA jurisdiction in Sackett v. EPA is still pending further compounds the confusion and regulatory uncertainty that will result from this rulemaking. As the Army Corps and EPA consider future rulemakings on this issue, ABC urges the agencies to postpone further action until the Supreme Court issues its ruling.”
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