The EPA and Army Corps of Engineers last month proposed to replace the 2015 definition of the term “waters of the United States” (WOTUS) with the definition that existed since 1986.
The agencies said the action is the first in a two-step process. In Step 2, the government will propose a new definition for WOTUS.
In the announcement, EPA Administrator Scott Pruitt stated that going back to the well-established 1986 definition allows the agencies to provide continuity and clarity to the regulated community while deliberating on a new definition.
And this time, the agencies said, the path to a new rule will be more public. “As we go through the rule making process, we will continue to make the implementation of the Clean Water Act Section 404 regulatory program as transparent as possible for the regulated public,” said Douglas Lamont, acting Assistant Secretary of the Army for Civil Works.
“NAHB applauds President Trump, the EPA and the Corps for taking the necessary actions to roll back this seriously flawed WOTUS rule that would harm housing affordability by requiring expensive and time-consuming federal permits for countless ditches, isolated ponds and dry channels,” NAHB chairman Granger MacDonald said in a press release.
“Earlier this year, the president honored a campaign promise made to home builders as he signed an executive order directing EPA and the Corps to begin the process of dismantling the controversial WOTUS rule. This is an important step forward to rework the flawed regulation that blatantly usurped state and local authority,” MacDonald said.
“NAHB looks forward to working with the administration, EPA Administrator Scott Pruitt and [Mr.] Lamont to develop a common-sense solution to protecting our nation’s waterways while taking into account the interests of local businesses and communities nationwide,” MacDonald said.
Since the end of June, 28 state attorneys general, including South Carolina Attorney General Alan Wilson, have filed lawsuits seeking to overturn a federal rule that defines the “waters of the United States” and the jurisdictional scope of the Clean Water Act.
The National Association of Home Builders (NAHB) has also filed its own lawsuit against the Environmental Protection Agency and the U.S. Army Corps of Engineers in the U.S. District Court, Southern District of Texas, charging that EPA and the Corps are “set and determined to exert jurisdiction over virtually every water feature imaginable.”
The effort by local and state home builders associations to get their state attorney generals involved is important to prevent federal overreach that could place millions of additional acres of private land and countless miles of dry stream beds under federal jurisdiction.
The water rule, which will go into effect 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.
In addition to challenging the rule in the courts, NAHB continues to successfully engage legislators. 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.
Members are encouraged to contact their senators and urge them to support this bill. Use these talking points as a guide to talk to elected officials and others about why the rule should be withdrawn.
Over the August congressional recess, please contact your members of Congress and urge them to call for the immediate withdrawal of the Environmental Protection Agency (EPA) final “waters of the U.S.” (WOTUS) rule. Recently unveiled documents expose how the EPA dismissed legal and regulatory objections to the rule by the U.S. Army Corps of Engineers (Corps) and shed light on an EPA that is acting with little regard for the impact of the rule on home builders and home owners. Now, more than ever, we need your help in forcing the EPA to withdraw this flawed rule.
As we reported to you last week, the EPA has not been an honest broker and has made a mockery of the regulatory process. The recently unveiled documents confirm the long-held belief that the EPA forcefully advanced this rule without the requisite input and oversight of its co-authoring agency, the Corps. This is particularly disturbing because the WOTUS rule has always been presented as a joint effort between the two agencies – not solely an EPA rule.
These internal Corps memos outline the specific areas of concern that the Corps has and how EPA ignored its recommendations and input. The documents state that the regulation was arbitrarily written, is legally indefensible and would be extremely difficult to implement. They also reveal that many aspects of the rule are not rooted in science and that EPA grossly misrepresented Corps’ data. The Corps disagreed so strongly with the final rule that it worked to distance itself, requesting all references to the Corps be removed from the economic analysis and all supporting documents.
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For more information about the Waters of the US rule, click here.
The letter below to HBA members is from Tom Woods, a Home Builder from Kansas City and Chairman of the National Association of Home Builders.
This week, we learned that before the Environmental Protection Agency released its final version of the waters of the United States rule, the U.S. Army Corps of Engineers told EPA it was using flawed technical and scientific analysis to craft the regulation – methods so indefensible that the Corps wanted no part of the critical documents that EPA used to support the rule.
This new information is yet another example of how EPA has flaunted the law in completing this rulemaking.
On behalf of our members, and on behalf of the new home buyers being squeezed out of their chance at the American Dream as they suffer the fallout of this regulatory overload, I think this is scandalous. And I said just that in a press release and blog post.
I want you to know that NAHB is calling on EPA to immediately drop its plans to change the way the Clean Water Act is enforced and how “waters of the United States” are defined.
Many of the scientific and economic justifications to support the broad regulatory definitions in this rule – already a new low in federal regulatory overreach – have turned out to not be worth the paper they’re printed on. They fly in the face of the Corps’ recommendations, and as you know, the Corps is in charge of jurisdictional decisions and issuing the permits that allow homes to be built.
By ignoring stakeholders and willingly choosing which regulations to follow, EPA has not only made a mockery of the regulatory process, but it’s impeding our nation’s housing recovery and economic growth with this land grab.
Please be assured that we don’t plan to turn down the heat on this latest public affront. NAHB will continue to work to make a difference for your business and for housing affordability, and I thank you for your support.
Tom Woods, Chairman, National Association of Home Builders
Interested in why the U.S. Army Corps of Engineers thinks the EPA’s rule is flawed?
NOT A JOINT ENDEAVOR:
“The preamble to the proposed rule and the draft preamble to the draft rule state that the rulemaking has been a joint effort of the EPA and the Corps, and that both agencies have jointly made significant findings, reached important conclusions, and stand behind the final rule. These statements are not accurate.” (Letter from General Peabody to Assistant Secretary of the Army, 4/27/15)
“Shall not identify Corps as Author, co-author, or substantive contributor.” (Letter from General Peabody to the Assistant Secretary of the Army, 5/15/15)
“To the extent that the term ‘agencies’ includes the Corps any such references should be removed.” (Letter from General Peabody to the Assistant Secretary of the Army, 5/15/15)
“The Corps of Engineers logo should be removed from those documents.” (Letter from General Peabody to the Assistant Secretary of the Army, 5/15/15)
THE SCIENCE OF THE RULE:
“Corps data to EPA has been selectively applied out of context, and mixes terminology and disparate data sets. In the Corps judgement, these documents contain numerous inappropriate assumptions with no connection to the data provided, misapplied data, analytical deficiencies and logical inconsistencies.” (Letter from General Peabody to the Assistant Secretary of the Army, 5/15/15)
“The 1500 ft limitation is not supported by science or law and thus is legally vulnerable.” (Lance Wood memo to General Peabody, 4/24/15, Pg. 5)
“The 4000 ft bright line rule is not based on any principle of science, hydrology or law, and thus is legally vulnerable.” (Lance Wood memo to General Peabody, 4/24/15, Pg. 9)
“Gross misrepresentation of Corps raw data” (Jennifer Moyer memo to General Peabody, 5/15/15, Pg. 3)
THE LEGAL JUSTIFICATION FOR THE RULE
“It will be legally vulnerable, difficult to defend in court, difficult for the Corps to explain or justify and challenging for the Corps to implement.” (Lance Wood memo to General Peabody, 4/24/15, Pg. 5)
“Rule not likely to survive judicial review in federal courts” (Lance Wood memo to General Peabody, 4/24/15, Pg. 9)
“Inconsistent with SWANCC and Rapanos” (Lance Wood memo to General Peabody, 4/24/15, Pg. 10)
“The draft final rule continues to depart significantly from the version provided for public comments, and that the corps recommendations relation to our serious concerns have gone unaddressed. Specifically, the current draft final rule contradicts long-standing and well-established legal principles undergirding CWA 404 regulations and regulatory practices, especially the decisive Rapanos Supreme Court decision. The rule’s contradictions with legal principles generate multiple legal and technical consequences that in the view of the Corps would be fatal to the rule in its current form.” (Letter from General Peabody to Assistant Secretary of the Army, 4/27/15)
On June 29, 2015, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers published regulations in the Federal Register that, if implemented as planned on August 28, will massively expand the Federal government’s jurisdiction over private property under the guise of the Clean Water Act. Many observers, including the National Association of Home Builders, believe the regulation is an illegal expansion of Federal government authority.
Today, Tom Woods, Chairman of the Board of the National Association of Home Builders, announced that your Home Builders Association has filed a lawsuit in U.S. District Court challenging the new rule. Below is a statement issued by Chairman Woods:
Fulfilling the pledge that I made at the Spring Board of Directors Meeting, NAHB has filed suit seeking to overturn a federal rule that redefines “the waters of the U.S.” and drastically expands the area that can be regulated by the federal government under the Clean Water Act. The rule will go into effect Aug. 28.
Brought against the Environmental Protection Agency and the Army Corps of Engineers in U.S. District Court, Southern District of Texas, the lawsuit charges that the two agencies are “set and determined to exert jurisdiction over virtually every water feature imaginable.”
NAHB has been involved in trying to shape this rule since it was first proposed in April 2014, and urged significant changes to make it more workable. Despite some minor improvements, the final rule is so extreme that the federal government will actually regulate certain roadside ditches, isolated ponds, and channels that may flow only after a heavy rainfall.
Such intrusive federal encroachment will inevitably lead to bureaucratic delays, increased project costs and mitigation fees, and decreased housing affordability.
The lawsuit notes that the rule goes well beyond Congress’ original intent when it enacted the Clean Water Act and ignores the jurisdictional limits already set forth by the U.S. Supreme Court.
NAHB has also been working to 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 in consultation with state and local governments and other affected stakeholders, including small businesses.
NAHB is urging the Senate to pass companion legislation, S. 1140, the Federal Water Quality Protection Act.
NAHB was joined in the suit by other business and agricultural organizations, including: the American Farm Bureau Federation; the National Association of Manufacturers; the American Road and Transportation Builders Association; 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.
Further EPA Overreach
In other news, your Home Builders Association achieved an important victory for builders when the U.S. House of Representatives passed H.R. 2042, the Ratepayer Protection Act of 2015, on June 25. The bill aims to curtail the Environmental Protection Agency’s (EPA’s) proposed Clean Power Plan rule, which would have a negative impact on the home building industry.
While EPA’s proposed rule is meant to regulate greenhouse gas (GHG) emissions from existing power plants, its broad interpretation reaches beyond the agency’s statutory authority. Specifically, EPA includes consumer energy efficiency and demand-side management in calculating state goals and as an allowable part of required state plans to reduce future GHG emissions.
However, as the National Association of Home Builders outlined in comments submitted to EPA, stricter energy codes would affect only new construction and EPA has no authority over building codes.
What’s more, the energy efficiency requirements on new homes will drastically increase costs to home buyers, without guaranteeing real emissions reductions. After all, no federal or state agency can control how much electrical power a home owner decides to use once the building is occupied.
The Ratepayer Protection Act, sponsored by Rep. Ed Whitfield (R-Ky.), allows states to delay compliance with the Clean Power Plan until the courts decide on the legality of the rule. In addition, the bill includes an opt-out provision for any state that determines compliance with the rule would have a negative impact on ratepayers.
Your Home Builders Association helped lead the effort to pass the bill as a member of the Partnership for a Better Energy Future, a coalition of business organizations representing over 80 percent of the U.S. economy.
A similar bill, the Affordable Reliable Electricity Now Act of 2015 (S. 1324), was introduced in the Senate and is expected to receive a committee vote in July.
Although EPA had originally planned to finalize its regulations by June 15, it now expects to release a final rule in August.