flexiblefullpage - default
Currently Reading

WOTUS Rulings Cause Confusion for Home Builders

billboard - default
Business Management

WOTUS Rulings Cause Confusion for Home Builders

NAHB Housing Policy Briefing: Lack of clarity for land developers and builders regarding waters of the United States; construction labor market update

By National Association of Home Builders October 15, 2023
Bunch of question marks floating in water symbolizes confusion about WOTUS ruling
The Biden administration's amended WOTUS rule doesn't define what constitutes a “relatively permanent” waterbody and doesn't exclude “ephemeral features” from federal jurisdiction (that is, features that only contain water after a rainfall event). | Image: tostphoto / stock.adobe.com
This article first appeared in the September/October 2023 issue of Pro Builder.

The saga of federal regulation of waters of the United States (WOTUS) has taken another disappointing turn for the building industry. After the U.S. Supreme Court’s ruling inPB+ digital extra icon the case of Sackett v. Environmental Protection Agency that clarified the federal government’s authority over only relatively permanent waterbodies, the U.S. Army Corps of Engineers and the EPA suspended the issuance of approved jurisdiction determinations (AJDs) nationwide until those agencies finalize an amended WOTUS rule. 

The suspension of AJDs leaves land developers and builders unclear as to what features on their properties are subject to the Clean Water Act’s permitting requirements. Worse, the amended rule from the Biden administration fails to provide a definition of a “relatively permanent” waterbody, and it does not exclude from federal jurisdiction features that only contain water after a rainfall event (that is, “ephemeral features”).

The amended WOTUS rule suspending AJDs, which was prepared without any public input from stakeholders, misses an opportunity to provide regulatory certainty to the home building industry. Instead, it will lead to continued federal overreach, bureaucratic delays during the wetlands permitting process, and regulatory confusion for our industry. 


Additional Sources of WOTUS Confusion

The new rule itself is not the only source of confusion. Before the Supreme Court released its Sackett decision, federal district courts in 27 states had already issued preliminary injunctions against the previous Biden WOTUS rule that went into effect in March 2023. Those injunctions also prevent the EPA and the Corps from implementing the more recently amended WOTUS rule in those states.

Therefore, the revised WOTUS definition only applies in 23 states, the District of Columbia, and the U.S. Territories. For the other 27 states, EPA and the Corps are relying on their prior interpretation of WOTUS, as well as the recent Sackett ruling.

Moving forward, the National Association of Home Builders’ (NAHB) priority is to get the EPA and the Corps to resume issuance of AJDs and Clean Water Act permits consistent with the Sackett ruling. NAHB also continues to meet with officials from the two agencies to ensure this latest WOTUS rule is being implemented consistently and efficiently nationwide. NAHB’s membership supports a federal wetlands program that maintains environmental protection of our nation’s waterways but also restores common sense and predictability to the federal wetlands permitting process.

Construction Open-Jobs Data

The construction labor market continued to cool in July, as the number of open construction jobs decreased to 363,000 or 4.4% from the previous month. This estimate comes seven months after a high of 488,000 in December 2022. The overall trend reflects a slowing of the housing market, with notable upticks in month-to-month volatility since late last year (see chart, below) and is now entering a stop-start cooling stage as the housing market adjusts to higher interest rates.

NAHB economists anticipate additional weakening of housing and labor during the second half of 2023. Still, the housing market remains underbuilt and requires additional labor and lots, as well as lumber and other building materials, in order to add inventory. 

Despite some cooling in the housing market, attracting skilled labor will continue to be important for construction firms in the coming years. A slowing housing market will take some pressure off tight labor markets in the short term, but the long-term labor challenge will persist beyond the ongoing macro slowdown.

Chart showing data for construction job openings and labor turnover from October 2022 to July 2023
leaderboard2 - default
Written By

The National Association of Home Builders (NAHB) is a Washington, D.C.-based trade association representing more than 140,000 members involved in home building, remodeling, multifamily construction, property management, subcontracting, design, housing finance, building product manufacturing, and other aspects of residential and light commercial construction. For more, visit nahb.orgFacebook.com/NAHBhomeTwitter.com/NAHBhome

Related Stories

Build to Rent

Single-Family Build-to-Rent Construction Levels Off

Despite the flat readings for Q3 2022, NAHB anticipates the SFBTR market will expand in coming quarters as a result of mortgage interest rates remaining high


Builder Sentiment Is Still Down in November, but Forecast Indicates Improving Conditions

Mortgage rates approaching 8% earlier in November did little to boost builder confidence, but recent macroeconomic data indicate conditions could improve in the coming months


NAHB Careers in Construction Month Inspires Students to Pursue Skilled Trades

During October, a number of building associations and National Association of Home Builders members across the country joined in the effort to inspire younger generations to pursue careers in the skilled trades

boombox1 -
native1 - default
halfpage2 -

More in Category

Get your sales and marketing teams together to create and deliver a consistent brand message from start to finish

A closer look at what’s propelling the adoption of off-site construction methods in home building

If you want to know what's driving home building's move to off-site construction methods: look to the convergence of technology and culture

native2 - default
halfpage1 -

Create an account

By creating an account, you agree to Pro Builder's terms of service and privacy policy.

Daily Feed Newsletter

Get Pro Builder in your inbox

Each day, Pro Builder's editors assemble the latest breaking industry news, hottest trends, and most relevant research, delivered to your inbox.

Save the stories you care about

Lorem ipsum dolor sit amet lorem ipsum dolor sit amet lorem ipsum dolor sit amet.

The bookmark icon allows you to save any story to your account to read it later
Tap it once to save, and tap it again to unsave

It looks like you’re using an ad-blocker!

Pro Builder is an advertisting supported site and we noticed you have ad-blocking enabled in your browser. There are two ways you can keep reading:

Disable your ad-blocker
Disable now
Subscribe to Pro Builder
Already a member? Sign in
Become a Member

Subscribe to Pro Builder for unlimited access

Lorem ipsum dolor sit amet, consectetur adipisicing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua.