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The Environmental Protection Agency and U.S. Army Corps of Engineers’ proposed draft “Guidance on Identifying Waters Protected by the Clean Water Act” holds negative economic consequences for the nation’s home builders, as well as states and cities and prospective home owners, NAHB said in comments to the EPA on Aug. 1.
Issued on May 2, the guidance lays out how the federal agencies will determine if a wetland or body of water comes under the jurisdiction of the Clean Water Act.
The guidance is proposed to supersede previous documents that have been issued by the agencies over recent years on this subject, and for the first time covers all sections of the Clean Water Act.
The agencies expect the guidance to increase the extent of waters that fall under federal jurisdiction, but by less than 5% in their estimation.
A rulemaking on determining the waters of the U.S. under the Clean Water Act is to take place once the guidance document is finalized, suggesting the expansion of areas in which home building and other activities will require permits.
Among the major points NAHB made in its comments:
- The EPA should abandon the draft guidance and proceed to a rulemaking on federal Clean Water Act jurisdiction.
- The agencies have misinterpreted the SWANCC and Rapanos Supreme Court cases in using them to justify many of the provisions of the guidance.
- The agencies have proposed a new “watershed aggregation approach” to identify bodies of water with a “significant nexus” to traditional navigable and interstate waters that impermissibly expands the agencies’ authority and misconstrues Supreme Court rulings.
- Low Impact Development, other stormwater controls, and Municipal Separate Storm Sewer Systems (MS4s) should be treated as “waste treatment systems” and not considered waters of the U.S.
- The EPA’s economic analysis of the draft guidance failed to consider all of its impacts and understates its costs.
For more information, email Glynn Rountree at NAHB, or call him at 800-368-5242 x8662.