APARTMENT ADVOCATE
NATIONAL APARTMENT ASSOCIATION
WOTUS Rule Takes Effect Amid Legal , Political Challenges
The EPA ' s new definition will likely cause additional development costs and delays .
On March 20 , 2023 , the Environmental Protection Agency ’ s ( EPA or the Agency ) new Revised Definition of ‘ Waters of the United States ’” ( WOTUS ) rule went into effect . These changes , governed by the Clean Water Act , significantly expand the scope of development activity regulated by the EPA and will likely cause additional costs and delays in multifamily development .
BACKGROUND
The definition of WOTUS was previously revised in 2020 to give the EPA authority over waters and wetlands that “ maintain a sufficient surface water connection to traditional navigable waters and territorial seas .” That version of the rulemaking struck a better balance of strong protections for our natural environment and understandable regulations for development .
The new definition of WOTUS largely reverts the Agency ’ s jurisdiction to what it was before 2015 , encompassing half a century of layered rulemaking and Supreme Court decisions . The new rule not only increases the number of properties governed by the Clean Water Act , but also provides less clarity for those who must comply .
LAWSUITS
As of the time of writing , the new WOTUS definition is only in effect in half of the states because ongoing litigation , to which the National Apartment Association ( NAA ) is a party , has prevented its implementation in the other half . As of April 12 , 2023 , the Rule has been blocked in 26 states by the U . S . District Court of North Dakota and U . S . District Court of Southern Texas .
In West Virginia , State of et al v . U . S . Environmental Protection Agency et al , U . S . District Judge Daniel Hovland found that the “ new 2023 Rule is neither understandable nor ‘ intelligible ,’ and its boundaries are unlimited ,” and that “ it is doubtful Congress endorsed the current efforts to expand the limits of the Clean Water Act …”
The plaintiffs in the above case sought a preliminary injunction prohibiting the EPA ( and other defendants in the case ) from enforcing or implementing the WOTUS Rule . Meanwhile a decision in Sackett v . EPA , a key Supreme Court case examining the proper test for evaluating whether the EPA has jurisdiction to regulate wetlands , is still pending . Judge Hovland wrote that the “ 2023 Rule ’ s www . aamdhq . org MAY 2023 TRENDS | 45