In an expected but disappointing development for housing interest groups, President Joe Biden vetoed a congressional resolution to rescind the Waters of the United States (WOTUS) rule under the Clean Water Act (CWA).
The veto follows bipartisan approval in the House and the Senate in opposition to the WOTUS rule. Housing interest groups, including the NAHB and the National Multifamily Housing Council (NHMC), have opposed the new WOTUS rule for months, arguing it will negatively impact affordability, cause permitting delays, and raise housing costs.
WOTUS is a threshold term intended to establish the geographic scope of federal jurisdiction under the CWA. The rule would add an additional step in the regulatory process for builders and developers, requiring them to determine whether isolated wetlands, ephemeral streams, or human-made drainage features are “federally jurisdictional.” Under the rule, a federal regulator would apply the “significant nexus test” to determine whether a feature significantly impacted the “integrity of a traditional navigable water.” The NAHB said it is “extremely” difficult to apply the significant nexus test consistently, and, in general, the rule “radically extends” areas in which builders need to get federal permits.
“[President] Biden’s veto of this measure is a blow to housing affordability and a common-sense regulatory agenda,” NAHB chairman Alicia Huey said in a statement published on the association’s website. “The Biden WOTUS rule adds unnecessary regulatory burdens to small businesses and needlessly raises housing costs while doing little to protect America’s waterways.”
In his veto statement, President Biden said the “increased uncertainty” caused by the congressional action “would threaten economic growth.” Additionally, President Biden wrote that if the congressional resolution was passed, “construction crews would be left wondering whether their water-filled gravel pits remain excluded or not” from federal protection.
The NAHB, the NMHC, and numerous agricultural interest groups have supported legal efforts in opposition to the new WOTUS rule. A federal judge in Texas blocked the WOTUS rule from taking effect in Texas and Idaho, and a lawsuit hoping to achieve a similar outcome in North Dakota has the support of 23 other states. A pending U.S. Supreme Court case, Sackett v. EPA, could significantly narrow the scope of the EPA’s authority and nullify major elements of the WOTUS definition.
“The Supreme Court’s upcoming decision in the case of Sackett v. EPA that is squarely focused on a major part of the rule means that the regulation could essentially be overturned in the near future,” Huey said. “To put an end to this regulatory morass, the administration needs to delay implementing this onerous regulation until a judgment is rendered.”
