APARTMENT ADVOCATE
NATIONAL APARTMENT ASSOCIATION
EPA to Revamp Troubled ' Waters of the United States ' Rule
What’ s next for the WOTUS rule.
On March 12, 2025, the U. S. Environmental Protection Administration( EPA) announced that it will work with the U. S. Army Corps of Engineers( Army Corps) to review the definition of“ Waters of the United States”( WOTUS) to align it with the Supreme Court’ s finding in Sackett v. Environmental Protection Agency. An appropriately scoped revision to the WOTUS definition would provide much needed clarity and regulatory relief for developers across the country as they work to meet the nation’ s rental housing needs.
BACKGROUND
The definition of WOTUS determines the scope of EPA’ s authority over waters and wetlands in the United States under the Clean Water Act( CWA or Act). If a body of water is subject to the CWA, then any developmental activities must comply with the Act’ s permitting program, which burdens projects with costly regulatory requirements.
In December 2022, the EPA and the Department of the Army( Army) issued a final rule revising the WOTUS definition, which was published in the Federal Register in January 2023( January 2023 Rule). The revised definition greatly expanded EPA’ s authority— increasing the number of properties covered by the CWA, muddying the waters around compliance and threatening to raise costs and cause delays in multifamily development.
That rule went into effect in March 2023 amid a sea of legal and political challenges. Including the National Apartment Association’ s( NAA) legal advocacy efforts, litigation across the U. S. blocked implementation of the rule in 26 states. As this litigation is ongoing, there are now two regulatory regimes in effect in different parts of the United
States. At the same time, a decision in the case Sackett v. Environmental Protection Agency— which had implications for implementation of the rule— was also pending.
When Sackett was decided in May 2023, the EPA and the Army had to undertake an effort to conform the rule to the Supreme Court’ s finding because the Court’ s decision addressed which waters were covered under the CWA. The agencies issued an amendment to the rule, which became effective September 8, 2023— but only in states where the January 2023 rule was not enjoined.
WHAT’ S NEXT
The EPA is seeking to revise and clarify the WOTUS definition and intends to publish a Notice in the Federal Register soliciting public comments and announcing stakeholder listening sessions. From there, EPA has indicated it will follow the rulemaking process to make necessary changes to the WOTUS rule. In the meantime, the EPA and the Army have issued a memorandum providing guidance for how to implement the WOTUS Rule’ s“ continuous surface connection” requirement under both regulatory regimes currently in effect across the country.
The National Apartment Association( NAA) supports efforts to clarify and appropriately scope the definition of WOTUS. The definition adopted in the January 2023 Rule was overbroad and threatens the rental housing industry’ s ability to produce the units necessary to meet Americans’ housing needs.
NAA continues its federal advocacy with Congress and the Administration to address the industry’ s WOTUSrelated concerns. NAA urged Congress to overturn the January 2023 Rule, including our support for a bipartisan joint resolution which would nullify the rule under the Congressional Review Act. NAA also continues to advocate before the EPA for revisions to the Rule that eliminate confusion, remove unnecessary regulatory burdens and reduce the cost of development. www. aamdhq. org 47 | TRENDS APRIL 2025