A Game of Ping Pong

Rewriting the “waters of the United States” rule (referred to informally as WOTUS) has become something of a rite of passage for U.S. presidents, with every president since George W. Bush taking a stab at getting it right. So, it was no surprise that shortly after taking office, the Biden administration released a list of regulations it was considering for review and rulemaking—with WOTUS on the list.

By way of background: The Clean Water Act, passed in 1972, is the primary federal law in the U.S. governing the cleanup, maintenance, and protection of waters in the country. Under it, the Environmental Protection Agency and the Army Corps of Engineers have jurisdiction over “navigable waters of the U.S.” Thus, the WOTUS rule, which defines “navigable waters” since the meaning was left open-ended in the legislation. While seemingly obvious, the phrase has led to multiple court cases, some of which reached the Supreme Court, over multiple decades. The result is a definition that combines a number of Supreme Court decisions and reflects the different aspects of the rule that were challenged.

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How an administration defines WOTUS has a massive impact on real property owners. An overly broad definition may result in the need for expensive and time-consuming federal permits to develop private property with any wet area—not just properties with a navigable interstate water or that are adjacent to a wetland. It could also result in a property being rendered unusable. The result, in effect, is a taking without adequate compensation, which is proscribed under the Fifth Amendment of the Constitution. Thus, NAR and its members have a particular interest in how the rule is written and the scope of its coverage.

The EPA and the Army released their latest WOTUS proposal in January 2021, which includes several key changes to the rule written under the Trump administration. The new proposal largely reverts to the pre-2015 standard, which was set by the George W. Bush administration. (Between 2015 and 2020, the Obama administration’s rule was in effect. It expanded the WOTUS definition and jurisdiction.) However, there is a key change in the Biden administration’s proposal: It includes a “relatively permanent” standard for waters (e.g., waters that do not exist year-round, such as vernal pools, may be subject to the rule), as well as a broader definition for “significant nexus,” which allows certain smaller waters that connect to larger, navigable ones to be regulated under WOTUS. These standards are legal phrases that have been debated in the past and which will almost certainly be challenged in court, possibly resulting in yet another Supreme Court ruling.

NAR has long held that WOTUS should be based in science, focusing on preservation of high-value wetlands and requiring that local officials and affected property owners be notified about the presence of such wetlands. In other words, if you own a property with a wetland on it, you should know whether it is covered by WOTUS. And if you do not, it should not be a difficult undertaking to make that determination. NAR participates in a coalition of industry groups aiming to ensure WOTUS meets these criteria and does not unnecessarily impinge on property rights or the ability to develop land. NAR has participated in listening sessions and meetings with the EPA and the Army regarding rulemaking. We recently provided comments to assert our position as part of the notice-and-comment rulemaking process, and we will continue to advocate for a science-based, common-sense WOTUS rule.