Court Ruling Suspends New EPA Water Rule

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raingardenNAHB today commended the U.S. Court of Appeals for the Sixth Circuit for enacting a nationwide stay on Environmental Protection Agency (EPA) regulations that dramatically expand the definition of “waters of the United States” under the Clean Water Act.

“We applaud the court for taking this action to suspend EPA’s water rule,” said NAHB Chairman Tom Woods. “NAHB has been working diligently on the legislative and legal fronts to overturn this rule that raises housing costs, tramples states’ rights and adds unnecessary regulatory burdens to small businesses.”

As required by law, EPA failed to consult with state and local governments, confer with business stakeholders, comply with regulatory requirements or produce an accurate cost-benefit analysis.

“The EPA had said the new definitions were needed to bring clarity to the regulations. We fought back in hearings, written testimony and comments, and finally, a lawsuit – because these new rules did nothing but muddy the waters – confusion that would lead to costly permitting delays and hamper our nation’s economic recovery,” Woods said in a letter to members announcing the decision.

In its ruling, the Sixth Circuit stated: “A stay temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new rule and whether they will survive legal testing. A stay honors the policy of cooperative federalism that informs the Clean Water Act and must attend the shared responsibility for safeguarding the nation’s waters.”

So while the federal courts figure this out, the agencies will have to use their previous definitions. For the time being, EPA and the Army Corps of Engineers must prove that a water is jurisdictional before automatically sweeping it into their regulatory nets.

“Our members want to protect the nation’s waters, but we need clear rules,” Woods said. “Today’s court decision is a step in the right direction.”

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Comments (12)

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  1. James Futter says:

    Thanks, good news. Hopefully we can do away with all regulations on non-jurisdictional wetland permits even within the states. Right now as I understand the South Carolina law. OCRM division of the South Carolina Dept of Health and Environmental Control still exercises their permit authority on Corps of Engineers non-jurisdictional wetland areas in the coastal areas. This is not saving waters of the state or country in my opinion as many of these areas are not actual wet areas.
    James Futter, P.E.

  2. Randall Comber says:

    This is a good start! How about abolishing EPA ? Let states have control locally…

  3. My firm works with wetlands every day in the southeast US. I experienced what happened when the Corps tried to revise the delineation manual in 1992 and that was a debacle. The roll out of the current changes which have been stayed, has been another fiasco. We were told by Corps staff that there was no internal preparation because they did not believe the change would be implemented.
    They did not have the new data sheets prepared until last Monday ; they were required upon implementation. The staff had no training before implementation; now every regulator involved is admittedly handcuffed due to lack of preparation and understanding. There are many different interpretations.

    While these matters are not substantive to the content, they are the real life frustrations of dealing with bureaucracy and its inefficiency.

  4. Chris says:

    The US vs Lipar case, recently lost by the EPA in Houston, shows that there is some sense at some levels of government.

  5. Ron Agulnick says:

    Is there an opinion? Or was it an uncontested PI until final hearing? Is there a cite or published opinion? Great news but I don’t know what the Court said or why.

    • NAHB Now says:

      Thanks for the reminder, Ron. We were unable to link to the opinion when this blog post was published, but now it’s available, so we have updated the post with the link.

  6. The “waters of the US” was merely a power grab by the bureaucracy. Once they get their arm around the “waters,” they will have to be pried away from it kicking and screaming. There might be some residual benefits to the environment, but the revenue raising possibilities from the “waters” rules would keep an entire legion of bureaucrats funded, fat and happy.

  7. While I can see some benefits of this, I’m also very concerned. Having rules on water solely in the hands of states and local governments is part of what created situations like what’s now going on in Flint, MI. A whole town without drinkable water, and what water there is is so full of lead that it has irreparably damaged hundreds of young children. Without federal oversight to impose hard limits in places where individuals and local companies can stand to make huge profits, who protects the people?

  8. Mikal Maxim says:

    Though this may be reviving an old thread. Here is a link to the summary judgment on the US vs. LIPAR case: http://www.wetlandsprofessional.com/uploads/2/1/5/7/21571046/united_states_of_america_vs_thomas_e._lipar.pdf

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