Members Bring Clean Water Act Worries to White House

Filed in Codes and Regulations, Land Development by on May 18, 2015 0 Comments
Tom Ward (VP Legal Advocacy, NAHB), David Carter P.E. (President Carter Engineering), Robert Anderson Esq. (Fennemore Craig LLP), Owen McDonough (Program Manager Environmental Policy, NAHB), and Courtney Briggs (Director Federal Legislative Affairs, NAHB).

NAHB members  David Carter and Robert Anderson (center) are flanked by NAHB staff after their meeting with the White House Office of Management and Budget.

NAHB members and staff met with officials from the White House Office of Management and Budget last week to repeat their concerns about the soon-to-be-finalized redefinition of “waters of the U.S.” under the Clean Water Act.

The meeting was the latest step in NAHB’s ongoing efforts to provide real-world examples of what seem like abstract concepts. As CEO Jerry Howard noted in an interview with The Hill, the White House staff needs to understand “what the practical implications of this expansion would be.”

NAHB’s discussion focused on two very different areas: the arid Southwest and the coastal Southeast, both places where the potential impact of this rule on the home building industry is difficult to overstate.

In the Southwest, explained NAHB member Rob Anderson, a partner with the law firm Fennemore Craig in Phoenix, ephemeral streams — waterways that only appear after a rainstorm — comprise a vast majority of the stream network.

The Army Corps of Engineers has historically taken the position that these small, typically dry land features are generally not jurisdictional under the Clean Water Act, and thus do not require a federal permit before any land development or construction begins. However, a new, more expansive “tributary” definition would make these dry desert washes automatically jurisdictional.

The sheer number of costly permits would bring Southwest economies to a crawl with little environmental benefit, Anderson told officials. “Some of these features only flow once every 10 to 15 years and yet would meet the new definition of ‘tributary.’ It was not the intent of Congress to regulate every drop of water that happens to flow across the landscape. The ‘tributary’ definition must be limited to more continuously flowing waters,” he said.

What’s a Neighbor?

Dave Carter, a civil engineer and past president of the Florida Home Builders Association, told officials there are too many technical problems in his state associated with the definition of “neighboring” wetlands. Unclear language could allow the Corps to automatically assert jurisdiction over any isolated wetland that has a “shallow subsurface connection” to another traditional navigable water.

Over half of Florida is covered by a shallow subsurface aquifer. Carter explained, resulting in a groundwater table within a few inches or feet underground. But the proposed definition of “neighboring” means that any isolated wetland or ephemeral stream would be jurisdictional because of that large underground connection.

“In Florida, this would mean effectively all isolated wetlands are covered by the Clean Water Act and require federal wetland permits, despite the fact that under the act, states – not the EPA nor Corps – have the legal authority to regulate groundwater,” said Carter.

NAHB’s meeting at the White House coincided with the U.S. House of Representative’s passage of H.R. 1732, Regulatory Integrity Protection Act. H.R. 1732 passed with strong bipartisan support and the support of NAHB.

If enacted, the bill would require EPA and the Corps to withdraw the proposed rule and address its numerous scientific, economic, procedural and practical flaws. For additional information, contact Owen McDonough at 800-368-5242 x8662.

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