26
Texas Association of Builders
September/October 2015
On Council
Waters of the United States:
The Final Rule
O
n May 27, the Environmental
Protection Agency and the U.S.
Army Corps of Engineers finalized
the long-awaited rule to define “waters of
the United States” and the jurisdictional
scope of the Clean Water Act. This rule took
effect in August of this year. It is important
to the home building industry because it
changes what areas can be regulated by the
federal government under the act. Despite
the agencies’ claims that this rule is narrower
in scope than existing regulations, the final
rule contains changes that could significantly
expand federal jurisdiction, triggering
additional expensive and time-consuming
permitting and regulatory requirements.
Why It Matters
Despite some improvements to the original
proposal, the final rule contains overly
broad language that could place millions
of additional acres of private land under
federal jurisdiction. The rule is so extreme
that the federal government will actually
regulate certain roadside ditches, isolated
ponds and channels that may only flow after
a heavy rainfall.
This means, for example, that a builder in
Arizona would have to get a permit for an
activity in a dry desert wash that could be 30
miles from the nearest river. Such intrusive
federal encroachment is bad governance and
will inevitably lead to bureaucratic delays,
increased project costs andmitigation fees, and
ultimately, decreased housing affordability.
This federal overreach goes well beyond
congressional intent and the limits of
jurisdiction set forth by the U.S. Supreme
Court. The bottom line is that, contrary to
this rule, EPA and the Corps must recognize
there are limits to the reach of the Clean
Water Act. Without these limits, home
builders and developers must obtain costly
federal permits even when their activities
impact the most marginal features commonly
found on private property.
NAHB Actions
NAHB has been involved in trying to
shape this rule since it was first proposed
in April 2014. NAHB submitted extensive
comments, urging the agencies to withdraw
the rule and suggesting that Congress is
better equipped to determine which areas
should be affected by federal statute. NAHB
also sought significant changes to make
the proposal more understandable and
workable in the field.
NAHB continues to successfully engage
legislators on this rule, and now that the rule
is finalized, NAHB has filed suit to have it
overturned. In addition, as of mid-July, 28
state attorneys general have also instituted
legal action that seeks to rescind the rule.
The U.S. Supreme Court has already ruled
twice there are limits to the scope of federal
jurisdiction under the Clean Water Act. In
early July, Tom Woods, NAHB Chairman
and a home builder from Blue Springs,
Mo., issued the following statement on the
association’s lawsuit filed in the U.S. District
Court, Southern District of Texas against the
Environmental Protection Agency and the
U.S. Army Corps of Engineers seeking to
overturn this “waters of the United States”
rule that defines the jurisdictional scope of
the Clean Water Act:
“Today, NAHB took a stand against the
EPA and the U.S. Army Corps of Engineers
to fight back against this federal overreach
under the Clean Water Act. NAHB’s efforts
to work with the agencies to shape the
proposed waters of the U.S. rule into a more
workable solution were largely ignored. As
such, we had no other choice than to file
suit in an attempt to rein in their attempts to
exert jurisdiction over virtually every water
feature imaginable.
“The rule leaves the identification of
jurisdictional waters so vague and uncertain
that our members cannot determine
whether and when the most basic activities
undertaken on their land will subject
them to the Clean Water Act’s permitting
requirements. With its broad definitions
and expanded reach, EPA’s final rule is
so extreme that it will actually regulate
certain roadside ditches, isolated ponds
and channels that may only flow after a
heavy rainfall. This rule will needlessly
raise housing costs and add more regulatory
burdens to industries already struggling in a
recovering economic environment.
“NAHB is not alone in taking legal action
over this excessive regulation. We have
joined with a number of other business
and agricultural groups in taking this legal
action, and the attorneys general of 27
states have filed suit against the rule. We
plan to fight this federal overreach every
step of the way.”
Compiled from NAHB publications
