Bill Would Make All U.S. Waters Subject to Clean Water Act
NAHB told Congress last week that it would be a mistake to broaden the scope of the Clean Water Act (CWA) to have it cover all waters of the United States instead of the “navigable” waters covered under the current law.
The association submitted written comments to the House Committee on Transportation and Infrastructure, which is holding hearings on the bill, H.R. 2421, the Clean Water Restoration Act.
The elimination of the word “navigable,” which proponents say would simplify jurisdictional decisions and tighten water protections, would “result in the most significant legislative expansion of the [Clean Water Act] since its adoption in 1972,” the NAHB comments said.
Worse yet, “If H.R. 2421 were to pass, the courts would ultimately decide whether a ‘water’ is subject to [the act’s] jurisdiction. Such litigation would involve not just the scope of the [act] but also the scope of Congress’ constitutional authority,” the comments said.
The comments also offered some background information on Clean Water Act compliance in the home building industry.
“NAHB has … developed comprehensive familiarity with the [act’s] permitting requirements, provides compliance advice to its members and, unfortunately, has witnessed numerous situations where federal regulators have expanded the scope of their authority,” the comments said.
Home builders and developers apply for permits because, in the course of construction, they move large amounts of earth, creating possible soil and sediment that are regarded as pollutants under the Clean Water Act. But regulators are inconsistent in how they determine jurisdiction, the comments said.
“For years, landowners and regulators alike have been frustrated with the continued uncertainty over the scope of federal jurisdiction over ‘waters of the United States’ under the CWA,” despite the rulings on a number of court cases attempting to clarify that jurisdiction, the comments said.
“While the U.S. Supreme Court has weighed in on several occasions, the culmination of United States v. Riverside Bayview Homes, Inc., Solid Waste Agency of Northern Cook County v. United States Army Corps of Eng’rs (SWANCC) and the more recent Rapanos v. United States has provided a framework to utilize when determining which waters fall under the federal government’s purview. Within this framework, the regulated community requires a clear and simplified permitting process,” the comments said.
“Our members regularly design their projects to avoid sensitive areas, showcase natural resources and mitigate adverse impacts,” the letter continued. “As an organization, NAHB has tirelessly advocated for a Clean Water Act, [which] helped the nation make significant strides in improving the quality of our water resources. By improving its implementation, removing redundancy and further clarifying roles, the [Clean Water Act] can do an even better job at facilitating compliance and protecting the aquatic environment.”
However, the idea of regulating navigable waters, not all waters, is “the touchstone” of the Clean Water Act, NAHB said.
“The very fact that ‘navigable waters’ is found 81 times within the statute suggests Congress’ intent and illustrates the importance of this key word,” the comments said. And the Rapanos decision, “while using an expansive definition of ‘navigable,’ does not extend to all non-navigable ditches, drains and other features in the landscape. ... This bill gives EPA and the Corps jurisdiction over essentially all wet areas across the country, including impoundments, groundwater, ditches, pipes, streets, gutters and desert features.”
“The Clean Water Act is imperative to the continued protection of the nation’s waters and the National Association of Home Builders supports efforts to clarify confusion surrounding the implementation of the statute,” the comments concluded. “Home builders need a program that is consistent, predictable and timely. However, the changes proposed in H.R. 2421, the ‘Clean Water Restoration Act,’ would create more confusion for home builders and other stakeholders.”
To read the legislation, click here and enter H.R. 2421 in the box at the center of the page.
For more information, e-mail Calli Schmidt at NAHB, or call her at 800-368-5242 x8132.