NAHB Pushes to Protect Nation’s Water Resources

Utah Land

Despite the Clean Water Act, the federal government’s role in protecting the nation’s waters remains poorly defined.

As home builders, we help shape the nation’s communities and neighborhoods, and we have a vested interest in preserving and protecting the environment—including our water resources.

Since 1972, the Clean Water Act has played an important role in improving the quality of our water resources and the quality of our lives. But there’s still uncertainty over the scope of the act and the federal government’s appropriate role in protecting the nation’s waters.

Of most concern, more than four decades after enactment of the law, is that there is still no easy or predictable way to determine if certain types of “waters” are subject to the Clean Water Act’s mandates.

In April, the EPA and the U.S. Army Corps of Engineers issued a proposed rule intended to alleviate this uncertainty and clarify what areas are subject to the Clean Water Act. Unfortunately, the proposal not only falls far short of that goal, but it fails to follow the intent of Congress and sidesteps two Supreme Court rulings.

Instead, the proposal unnecessarily increases federal jurisdiction over private property. Moreover, it would provide little, if any, added protection to the “waters of the U.S.” because most of the newly jurisdictional areas are already regulated at the state or local level.

Although the EPA and the Corps of Engineers claim the rule does not expand jurisdiction, this simply is not true. It would establish a broader definition of tributaries and include new areas that currently are not federally regulated, such as adjacent non-wetlands, as well as low spots within riparian areas and flood plains. Further, because of ambiguous definitions, the agencies would retain extensive authority to interpret the scope of the Clean Water Act as they see fit.

Equally troubling, although the Supreme Court has twice affirmed that the Clean Water Act places limits on federal authority, the proposed rule would include many features that are remote, carry only small volumes of water, or have only theoretical impacts on “waters of the U.S.” In essence, the proposal ignores the Supreme Court’s rulings.

Ultimately, the rule would put more areas under the federal government’s jurisdiction, which would lead to more litigation and project delays; more landowners needing permits; higher costs for permitting and mitigation; and higher housing costs.

Another issue is that the agencies have not completed the report that is to serve as the scientific basis for the rule. Although the EPA administrator recently affirmed the importance of science in guiding the agency’s decision making, the agencies pushed ahead with this rule without the necessary scientific data to support their conclusions.

Defining which waters fall under federal authority is not an easy task, and more than 40 years after enactment of the Clean Water Act, the federal role remains poorly defined.

NAHB first vice chairman Tom Woods and I recently told Congress that the government cannot take the easy way out by just asserting jurisdiction over everything. The agencies are responsible for developing a meaningful, balanced, and supportable rule. That requires a more methodical approach based on facts and common sense that is true to the intent of the Clean Water Act and pays heed to the Supreme Court’s rulings.

By Kevin Kelly