On January 18, 2023, as part of a large coalition, the National Association of REALTORS® filed a lawsuit in the U.S. District Court for the Southern District of Texas to stop the Environmental Protection Agency’s and Army Corps of Engineers’ (the Agencies’) final Waters of the United States (“WOTUS”) rule from going into effect. The final rule was announced on December 29, 2022, and is set to take effect on March 20, 2023.
The lawsuit challenges the legality of the rule, which purports to clarify the Agencies’ definition of WOTUS. Instead of providing much-needed clarity to the regulated community, the rule instead vastly expands the Agencies’ authority over dry land and water features regardless of the physical connection to actual navigable waters. Under the final rule, the complaint argues that property owners will constantly be at risk that any sometimes-wet feature on their property will be deemed WOTUS by the Agencies using vague and unpredictable standards—making normal business activities in that area not only subject to substantial regulatory burdens, but also subject to criminal and civil penalties for those activities.
The Plaintiffs seek to vacate the rule based on violations of the Administrative Procedures Act, the Constitution’s Commerce Clause and Due Process Clause of the Fifth Amendment, and its departure from the plain text of the Clean Water Act. The Texas Attorney General has also filed a lawsuit in Galveston, arguing the final rule disrupts the state’s development and management of its own energy, agricultural, and transportation infrastructure.
In addition to NAR, the coalition consists of the following organizations: American Farm Bureau Federation, American Petroleum Institute, American Road and Transportation Builders Association, Associated General Contractors of America, Leading Builders of America, Matagorda County Farm Bureau, National Association of Home Builders, National Cattlemen’s Beef Association, National Corn Growers Association, National Mining Association, National Pork Producers Council, National Stone, Sand and Gravel Association, Public Lands Council, Texas Farm Bureau, and the U.S. Poultry and Egg Association.
Stay tuned for the latest updates on the litigation and implementation of the final rule.
See NAR’s Comment on the final WOTUS Rule.
Read more about the final WOTUS Rule.
Read the complaint.