Your Home Builders Association’s two-decade battle to right a federal regulation that can unnecessarily cost a home builder thousands of dollars is finally going to the U.S. Supreme Court.
On Friday, the Court agreed to hear Army Corps of Engineers v. Hawkes, which concerns whether a “jurisdictional determination” (J.D.) made under the Clean Water Act is a “final agency action” under the Administrative Procedure Act. If the answer is yes, then landowners could dispute J.D.s in court without first seeking a permit that the landowner does not think he or she needs.
The National Association of Home Builders was the only amicus that requested the Court to accept this case.
Builders and developers often obtain J.D.s that explain which parts of their property are wetlands or jurisdictional waters. Of course, any area that is jurisdictional requires a Corps’ permit before a property owner may develop it.
The problem has always been that property owners could not dispute in court whether a specific area is jurisdictional. The Corps and courts always required them to endure the entire permit process before they could go to court.
That, in turn, means that the property owner could spend hundreds of thousands of dollars to get a permit that may not have been necessary.
Your Home Builders Association has been fighting this issue for at least 20 years.
After months of hard work by your Home Builders Association, including a lawsuit brought by the National Association of Home Builders and member assistance, the Waters of the U.S. (WOTUS) rule has been stayed nationwide by a 2-1 vote in the Sixth Circuit Court.
This rule, created by the Environmental Protection Agency (EPA) under the Clean Water Act, was based on flawed data and would have required all home builders and homeowners looking to build or renovate to inquire about any water found on the property. Their inquiry would have queued to the U.S. Army Corps of Engineers, the group that makes jurisdictional decisions and issues permits. Before the WOTUS rule, the Corps of Engineers was taking six months to issue a jurisdictional determination. The WOTUS rule was expected to significantly delay any new development and add a new layer of regulation to areas that were previously unaffected by the Clean Water Act.
This ruling is extremely beneficial to home builders, remodelers, and a direct result of the work done by your Home Builders Association on behalf of the entire home building industry.
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.