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Proposed Bill on Clean Water Goes Overboard
Proposed legislation that would broaden the authority of the Clean Water Act is a leap in the wrong direction, NAHB told the U.S. Senate Committee on Environment and Public Works on Dec. 13.
“The Clean Water Act has helped the nation make significant strides in improving the quality of our water resources,” Duane Desiderio, NAHB staff vice president of litigation, told Senate leaders during the hearings.
NAHB has long supported the goals of the Clean Water Act, which is called into play when homes are built near rivers or wetlands and when builders take steps to avoid storm water runoff from construction sites.
But broadening the scope of the act to include all waters within its regulatory reach — including roadside ditches — loads on more regulation without a corresponding environmental benefit, Desiderio said.
Especially today, with a credit crisis exacerbating the housing slowdown, NAHB believes that Congress should focus its limited time and resources on legislation to help home owners and home buyers, rather than pursue legislative ideas that not only will restrict the industry’s ability to recover but also make new homes more costly, he told senators.
The federal government now has authority over navigable waters, as well as wetlands and other aquatic features that have a substantial connection to those waters. These bodies of water are protected for commerce as well as for their biological and ecological well-being — and that’s how it should be, he added.
There has been controversy over the purpose of the Clean Water Act since its enactment 35 years ago. In 2006, the U.S. Supreme Court issued a decision in Rapanos and Carabell that failed to end that controversy. However, lower courts have since ruled that for a water resource to come within the control of the federal government it must have more than a hypothetical or potential connection to traditionally navigable waters, Desiderio said.
Advocates for expanding federal control seek to bring upland ditches and desert washes within the oversight authority of the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency, he said. But there is no evidence that Congress ever intended to sweep such isolated and remote features into the federal regulatory net.
In the meantime, builders have reported long backlogs in the processing of permit applications and in some areas that process has come to a standstill, obstructing all residential construction.
Solving these thorny jurisdictional issues by expanding Clean Water Act authority to cover all waters, everywhere, would add significant time and costs for both regulators and builders, and would drive up the cost of housing, Desiderio said.
“Clean Water Act regulation cannot go to extreme lengths so as to subvert the act’s purpose to recognize, preserve and protect the primary rights and responsibilities of states to control water resources and address water pollution within their borders,” he said. “It would greatly undermine the careful balance among competing policies that Congress, the Supreme Court and the executive agencies have been working towards over the past 35 years.”
For more information, e-mail Calli Schmidt, or call her at 800-368-5242 x8132.
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