Confusion reigns over WOTUS regulations impacting housing industry

In a recent government meeting, significant concerns were raised regarding the complexities surrounding the definition and jurisdiction of Waters of the United States (WOTUS) as they relate to isolated wetlands and their connectivity to unregulated streams and other features. Stakeholders, particularly from the home building and infrastructure sectors, expressed frustration over the ambiguous criteria used to determine jurisdiction, which they argue has led to confusion and delays in project approvals.

The discussion highlighted a troubling trend where the distance used to establish connectivity—such as the 195 feet deemed acceptable—has become a contentious point. In contrast, distances like two miles are considered too far to assert jurisdiction, raising questions about the clarity of the regulations. Participants noted that the courts have stipulated that for a wetland to be considered adjacent to WOTUS, it must be indistinguishable from these waters, yet agencies are reportedly tracing connections between features that are clearly distinguishable.

Congressman Duarte shared his personal experiences with the Army Corps of Engineers, illustrating how swales have been misapplied in establishing connectivity. The meeting also addressed transparency issues, particularly regarding the implementation guidance from the agencies. Despite assurances from Michael Connor of the Army Corps that the process would be public, stakeholders have found the reality to be lacking. A Freedom of Information Act request by the National Association of Home Builders (NEHB) yielded a response filled with redacted information, leaving many questions unanswered.

Moreover, during a recent stakeholder meeting, the NEHB sought clarification on whether the agency's coordination memos were nationally binding, a crucial point since such documents should be open for public comment under the Administrative Procedure Act (APA). However, the EPA reportedly ended the discussion without providing a clear answer.

To enhance housing production and affordability, industry representatives called for a more predictable Section 404 permitting process. They urged Congress to codify definitions related to relatively permanent waters and continuous surface connections, or to clarify which features do not fall under these definitions. The meeting concluded with a commitment to further dialogue, emphasizing the importance of collaboration between the residential construction industry and regulatory agencies to navigate these complex issues.