NAHB to EPA: See You in Court

Filed in Capitol Hill, Codes and Regulations, Legal by on July 2, 2015 4 Comments

Interior of American courtroom

NAHB and other farm and business organizations filed a lawsuit today seeking to overturn a federal rule that defines the “waters of the United States” and the jurisdictional scope of the Clean Water Act.

The suit, which was brought against the Environmental Protection Agency and the U.S. Army Corps of Engineers in the U.S. District Court, Southern District of Texas, charges that EPA and the Corps are “set and determined to exert jurisdiction over virtually every water feature imaginable.”

Declaring the rule “unlawful,” and stating that it must be “set aside,” the complaint stipulates that the rule “leaves the identification of jurisdictional waters so vague and uncertain that Plaintiffs’ members cannot determine whether and when the most basic activities undertaken on their land will subject them to drastic criminal and civil penalties under the Clean Water Act.”

The water rule, which will go into effect on Aug. 28, is important to the home building industry because it changes what areas can be regulated by the federal government under the Clean Water Act and when builders and developers must obtain federal permits.

Federal Overreach Affects Millions of Additional Acres

NAHB has led the charge in striving to rein in this rule since it was first proposed in April 2014. NAHB submitted extensive comments, urging the agencies to withdraw the rule and asserting that Congress is better equipped to determine which areas are subject to the federal statute. NAHB also sought significant changes to make the proposal more understandable and workable in the field.

Despite some minor improvements to the original proposal, the final rule contains overly broad language that could place millions of additional acres of private land and countless miles of dry stream beds 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 and mitigation fees, and ultimately, decreased housing affordability.

Well Beyond Congressional Intent

As our lawsuit states, 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 continues to successfully engage legislators on this rule. With bipartisan support, the House recently approved H.R. 1732, the Regulatory Integrity Protection Act, which would require EPA and the Corps to withdraw their rule and develop a new plan to safeguard America’s waterways in consultation with state and local governments and other affected stakeholders, including small businesses.

NAHB is also urging the Senate to pass companion legislation, S. 1140, the Federal Water Quality Protection Act.

Use these talking points as a guide to talk to elected officials and others about why the rule should be withdrawn.

Other groups participating in our lawsuit include the American Farm Bureau Federation, the American Petroleum Institute, the Leading Builders of America, the National Alliance of Forest Owners, the National Cattlemen’s Beef Association, the National Corn Growers Association, the National Mining Association, the National Pork Producers and the Public Lands Council.

For more information on the litigation, contact Tom Ward at 800-368-5242 x8230; for information on NAHB’s legislative efforts, contact Courtney Briggs at x8459.

 

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Comments (4)

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  1. Barbara J Wickman-Byrd says:

    I am glad that NAHB along with others are filing. This rule is a clear overreach and we have to stop the EPA from this type of activity.

    Please keep us informed of your progress.

  2. Kevin Holland says:

    Thank you NAHB

  3. Robert W. Ives says:

    The federal government has run amuck. There are obviously too many employees with nothing better to do than dream up new regulations to impede any progress to be made by small business’.
    I can think of no better way to stifle growth than by regulating everything to death.

    This surplus of unelected bureaucrats should be put out on the street or at least caused to work at a real job for a year or two before they go directly from their higher education facility lapse into a lifetime of government largess.

    I know that there are a few who take advantage of the existing imposed regulations but this should be regulated on the State level. The States are better equipped to deal with these situations.

    How large will the federal government become if it is left unchecked. I can only surmise that these new regulations will require another cadre of additional employees to administer justice to the perpetrators of more horrible offences to nature.

    I have always played by the rules but when there are layer upon layer of new regulations and rules added year after year I begin to wonder.

    Enough is enough, no more will I stand by and be plundered by my own government.

    Robert W. Ives

  4. Randall Comber says:

    Noble effort, but EPA needs to be abolished !

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