On April 27, bipartisan leaders of the House Transportation and Infrastructure Committee and the House Agriculture Committee introduced legislation (H.R. 4965) to prevent the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) from using a draft guidance to dramatically expand the reach of the Clean Water Act to include virtually every ditch, pond and seasonal runoff ditch in the nation.
With the strong backing of NAHB, House Transportation Chairman John Mica (R-Fla.), along with ranking member Nick Rahall (D-W.Va.), Water Resources Subcommittee Chairman Bob Gibbs (R-Ohio), Agriculture Chairman Frank Lucas (R-Okla.) and ranking member Collin Peterson (D-Minn.) unveiled the bill to reduce the overreach of federal power under the Clean Water Act and to ease the regulatory burdens for America’s businesses, farmers and individual property owners.
NAHB is urging its members to call their representatives and ask them to cosponsor this important bill to compel the EPA and Corps to go back to the drawing board and craft a balanced approach to federal jurisdiction of the nation’s waterways.
H.R. 4965 is a companion measure to Senate bill S. 2245, the Preserve Waters of the United States Act, which was introduced by Sen. John Barrasso (R-Wyo.) and 29 other senators on March 28. NAHB continues to seek additional support for the Senate legislation as well.
The nation’s home builders have long supported the goals of the Clean Water Act, which is called into play when homes are built near rivers or wetlands and when builders take steps to avoid stormwater runoff from construction sites.
But recklessly broadening the scope of the act to include virtually all waters – including roadside ditches — within its regulatory reach will severely restrict the industry’s ability to recover and make new homes more costly without a corresponding environmental benefit, said NAHB Chairman Barry Rutenberg.
In May 2011, the EPA and Corps issued this draft guidance that significantly broadens the definition of federal waters of the United States under the Clean Water Act, allowing the EPA to go from regulating oceans and rivers to even the smallest bodies of water, including mudflats, prairie potholes and roadside ditches.
The proposal, which was sent in final form to the Office of Management and Budget in February, is radically broader in scope than previous guidance documents on this topic.
By issuing a guidance document as opposed to going through the more transparent rule-making process, EPA and the Corps are bypassing the necessary public outreach required under the Administrative Procedures Act and failing to fully consider the legal, economic and unforeseen consequences of their actions.
Upon introducing the bill, Rep. Mica said in a press statement that “this guidance would allow the unprecedented regulation of waters, occasionally wet areas and land use decisions not previously subject to federal regulation. Any regulatory expansion under the Clean Water Act must follow proper, transparent rulemaking procedures – not the unlawful, backdoor conversion of publicly unvetted agency guidance into de facto federal regulation.”
On March 28, House and Senate members sent a letter to OMB pressuring the Administration to halt the implementation of this water guidance overreach.
Further, the guidance uses an overly broad interpretation of the U.S. Supreme Court’s decision in the Rapanos case that addressed the issue of jurisdiction over “waters of the U.S.” under the Clean Water Act. The guidance contends that virtually all wet areas that connect in any way to navigable waters are jurisdictional, an assertion that was rejected in the Rapanos decision.
Warning of the severe economic consequences if the EPA and Corps guidance document is finalized, Rutenberg said: “This blatant regulatory overreach would lead to many more land development, road construction and residential projects requiring federal permits and would exacerbate permitting delays. In turn, this will increase construction costs, cause job losses, drive down housing affordability and hamper economic growth.”
To view legislation, click here and type the bill number in the box in the upper center screen.
For more information, email Courtney Flezzani at NAHB or call her at 800-368-5242 x8459.