Why Proposed ‘Waters of the U.S.’ Definition Doesn’t Work

This post was updated Oct. 17 with information about the Oct. 15 meeting with EPA.

“As you extend the definition of ‘Waters of the U.S.’ to streams that only flow after it rains and isolated ponds and drainage ditches, you extend the areas in which home builders are required to get permits,” leading to bureaucratic  delays, additional expenses and ultimate, more expensive homes.  Learn more in this interview with NAHB Environmental Policy Program Manager Owen McDonough and National Association of Counties Legislative Director Julie Ufner.

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The U.S. Small Business Administration (SBA) has joined the throng of home builders, farmers and elected officials asking the Environmental Protection Agency (EPA) to drop its proposed definitions for waters of the U.S.,  citing the disproportionate effect of the rule on small businesses.

It’s a situation that could have been avoided all together had the agency done what it was supposed to do in the first place: Have the SBA review the rule before releasing it to the public.

The new definitions could encompass land near bodies of water previously under the jurisdiction of states and counties – or in the case of some drainage ditches or upland bodies of water, not jurisdictional at all under the Clean Water Act.

SBA is “extremely concerned about the rule as proposed. The rule will have a direct and potentially costly impact on small businesses. The limited economic analysis which the agencies submitted with the rule provides ample evidence of a potentially significant economic impact,” said SBA Chief Counsel for Advocacy Winslow Sargeant, PhD., in an Oct. 1 letter to EPA Administrator Gina McCarthy.

On Oct. 14, Rep. Bob Goodlatte (R.-Va) wrote an op-ed in The News Virginian, saying, “The impact of the Waters of the U.S. rule on farmers, landowners, local economies, and jobs is very real. Protecting America’s waterways is critical, but continued power grabs by the EPA is not the solution. This should be a collaborative approach – not a mandate or murky definition from the EPA.”

On Wednesday, NAHB members Jerry Passman of Louisiana and Tom Farasy of Maryland met with EPA officials for an informal meeting to discuss the effects of the proposed rule on their businesses – as well as the expected eventual costs, by extension, to home buyers.

Both builders made it clear that the new definitions are game-changers. In his 30 years as a home builder, “I’ve done everything in my power” to avoid projects in locations where interaction with the EPA is even possible, said Passman With the need to bring in lawyers and environmental consultants before any development can begin, “Life is too short to get involved with the permitting headaches,” he told adminstrators.

Farasy focused on the “other waters” provision of the rule: If an “isolated wetland” is found to be jurisdictional by EPA, that allows the agency to assert jurisdiction over similar pieces of property if they are in the same watershed. Does that mean, Farasy wondered, that the builder himself is responsible for researching past EPA decisions and comparing environmental analyses of similar properties before contenplating whether to develop?

“This meeting was a day late and a dollar short,” said NAHB Environmental Policy Program Manager Owen McDonough. “By no means do we see this attempt as a substitute for SBA review.” And the home builders’ statements seemed to have no impact on EPA’s decision-making: Officials told the builders that the agency will move forward with the rule and finalize it in early 2015.

NAHB members are asked to continue to voice their concerns by using suggested talking points and comment letters on the Clean Water Act Resources page.

For additional information, contact McDonough at 800-368-5242 x8662.

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Comments (3)

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  1. Hans Thygeson says:

    We have to stop these new regulations. The grasp and effects will be long reaching and hard to comprehend when looking at developing a project. We incurred a $500,000 of additional cost and a year on a project all because the waters near by were found out to be a jurisdictional waterway and water off are property drained into the water way.

  2. Mike says:

    What if a tract was previously removed from the wetland registry, I guess with the State? Tract contains interconnected ponds tied to drainage waterway in South Louisiana.

    • NAHB Now says:

      Owen McDonough says, “Federal rule trumps the state. State law cannot be less stringent than federal law. If there are ponds that drain to waterways, they would be considered waters of the U.S. under the ‘tributary’ or ‘adjacent waters’ definitions.

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