On Nov. 18, 2021, the U.S. Army Corps of Engineers and U.S. Environmental Protection Agency (EPA) announced a proposal to withdraw President Trump’s Navigable Waters Protection Rule (NWPR) and put in place regulatory guidance that had been in effect before the Obama administration implemented its controversial Waters of the United States (WOTUS) rule in 2015. The Corps and EPA have been using that 1986 guidance since September 2021, after an Arizona court tossed out the NWPR and President Biden signed an executive order to roll back the rule.
The Corps and EPA announced in June 2021 that they were beginning the process of writing a new WOTUS rule, which would make it the third such rule in three administrations. Under the earlier 1986 WOTUS rule, tributaries and impoundments of interstate waters and certain wetlands were under federal jurisdiction, but determinations were made on a case-by-case basis. The Obama rule swept in many waters that were not previously considered subject to federal jurisdiction. That rule was challenged by many states and never implemented nationwide.
The Trump Administration repealed the Obama regulation, and in 2020, put in place its own version, the NWPR, which excluded wetlands not adjacent to federal waters and ephemeral bodies of water, such as roadside ditches. The National Association of REALTORS® (NAR) and other regulated stakeholders supported the change as a commonsense regulation that clearly defines what waters are subject to federal jurisdiction and what waters are subject to state and local protection.
Proponents of a new rule say it will offer regulatory certainty and better environmental protections; opponents say it will extend government overreach and slow economic growth. Both sides seem to agree that any rule the Biden Administration develops will mean more waters under federal control.
Federal control over more waters means more onerous permitting and bureaucracy, which could hinder needed real estate development and the creation of much-needed new housing supply. In addition, new commercial developments could be curtailed by a rule change, slowing growth in a time when the economy is marching toward a post-pandemic recovery.
Ideally, the process to create a new rule would bring together the regulated community and other stakeholders to hammer out a regulation that will hopefully stop the pendulum swings that have occurred as administrations change hands. The constant regulatory uncertainty and questions about the scope of federal authority over WOTUS have resulted in litigation and indecision, which is ultimately bad for development and water protections. NAR will continue to advocate for a rule that uses the best scientific criteria to clearly identify which waters are subject to federal jurisdiction, keeps the focus on preserving high-value waters and strikes an appropriate balance between environmental protection and economic development.
For more information, visit https://www.nar.realtor/clean-water-act.
Russell Riggs is senior policy representative for Environmental Issues, National Association of REALTORS®.