June 11, 2014 – A proposed rule recently released by the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) to expand the reach of the Clean Water Act could increase the cost of new homes without a corresponding benefit to America’s lakes, rivers and other water bodies, the National Association of Home Builders (NAHB) told Congress today.
“Unfortunately, the proposed rule falls well short of providing the clarity and certainty the construction industry seeks,” NAHB Chairman Kevin Kelly, a home builder and developer from Wilmington, Del., said during a hearing before the House Transportation and Infrastructure Committee’s Subcommittee on Water Resources and the Environment.
“The rule will increase federal regulatory power over private property and will lead to increased litigation, permit requirements and lengthy delays for any business trying to comply,” added Kelly. “Equally important, these changes will not significantly improve water quality because much of the rule improperly encompasses water features that are already regulated at the state level.”
Expanding federal authority under the Clean Water Act would greatly increase the number of construction sites required to obtain appropriate permits, which would also delay, impede and raise the cost of construction projects. Moreover, this would add to the exorbitant backlog of permits, which currently range from 15,000 to 20,000.
“This proposal would unnecessarily impose additional regulations that would make it more difficult for our industry to provide homes at an affordable price point,” said Kelly. “We need to find a common-sense middle ground that will protect our nation’s water resources and allow citizens to build and develop their land.”
The rule would exacerbate the current regulatory confusion by adding new, undefined terms such as “floodplain” and “riparian area” to give regulators automatic federal jurisdiction over properties that contain isolated wetlands, ephemeral streams or any land features covered under the expansive definition of “tributary.”
“For any small business trying to comply with the law, the last thing it needs is a set of new, vague and convoluted definitions that only provide another layer of uncertainty,” said Kelly.
The proposed rulemaking also threatens to discourage the use of low-impact or green development practices like rain gardens, swales and even sediment ponds as the EPA’s language about whether developers would have to get a federal permit before installing these systems is still unclear.
Finally, Kelly said that the proposal is inconsistent with prior U.S. Supreme Court rulings that established limits to federal jurisdiction over isolated wetlands and ephemeral streams. The proposed rule to clarify protection under the Clean Water Act for streams and wetlands fails to appropriately recognize the states’ authority to regulate what have historically been deemed “state waters.”
“Clearly, this is not what Congress intended when it enacted the Clean Water Act or told the EPA and the Corps to clarify its jurisdictional reach,” said Kelly. “Rather than adding new protections for our nation’s water resources, this proposed rule inappropriately shifts the jurisdictional authority of most waters to the federal agencies. If the EPA and Corps are interested in developing a meaningful and balanced rule, they must take a more methodical and sensible approach.”
At the request of NAHB and other stakeholders, the EPA yesterday announced a 91-day extension to the proposed rule’s public comment period from July 21 until Oct. 20, 2014.