Proposed Clean Water Act Rule is More Federal Overreach, Builders Tell Congress

June 17, 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 during a hearing recently.

According to the National Association of Home Builders, 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.

"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," said 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. "This proposal would unnecessarily impose additional regulations that would make it more difficult for our industry to provide homes at an affordable price point.”

This effort to clarify the definition of “waters of the United States” is being done in light of the U.S. Supreme Court cases in U.S. v. Riverside Bayview Homes, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), and Rapanos v. United States (Rapanos).

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."

The EPA extended the rule's public comment period from July 21 until Oct. 20, 2014.

The most substantial change is the proposed deletion of the existing regulatory provision that defines “waters of the United States” as all other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters: Which are or could be used by interstate or foreign travelers for recreational or other purposes; from which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or which are used or could be used for industrial purposes by industries in interstate commerce. 33 CFR 328.3(a)(3); 40 CFR 122.2. Under the proposed rule, these “other waters” (those which do not fit within the proposed categories of waters jurisdictional by rule) would only be jurisdictional upon a case-specific determination that they have a significant nexus as defined by the proposed rule. Waters in a watershed in which there is no connection to a traditional navigable water, interstate water or the territorial seas would not be “waters of the United States.” In addition, the proposed rule would for the first time explicitly exclude some features and waters over which the agencies have not generally asserted jurisdiction and in so doing would eliminate the authority of the agencies to determine in case specific circumstances that some such waters are jurisdictional “waters of the United States.”

“Waters of the United States” for all sections of the Clean Water Act mean:

  • All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
  • All interstate waters, including interstate wetlands;
  • The territorial seas;
  • All impoundments of a traditional navigable water, interstate water, the territorial seas or a tributary;
  • All tributaries of a traditional navigable water, interstate water, the territorial seas or impoundment;
  • All waters, including wetlands, adjacent to a traditional navigable water, interstate water, the territorial seas, impoundment or tributary; and
  • On a case-specific basis, other waters, including wetlands, provided that those waters alone, or in combination with other similarly situated waters, including wetlands, located in the same region, have a significant nexus to a traditional navigable water, interstate water or the territorial seas.

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