New EPA rule may hurt US housing, business broadly − trade groups

25 March 2014 21:27 Source:ICIS News

WASHINGTON (ICIS)--US home builders and the broader business community on Tuesday charged that a proposed rule defining streams and wetlands subject to environmental protection will impede housing development and raise costs generally.

The National Association of Home Builders (NAHB) warned that a new proposed rule by the Environmental Protection Agency (EPA) has unnecessarily and broadly expanded the definitions of regulated streams and wetlands in a decision that also could negatively impact the agriculture and livestock industries.

Earlier on Tuesday, the EPA and the US Army Corps of Engineers (Army Corps) jointly issued a proposed rule under the 1972 Clean Water Act (CWA) “to clarify protection under the CWA for streams and wetlands that form the foundation of the nation’s water resources”.

The Army Corps is involved because it has jurisdiction over federal waterways for operations, maintenance and improvements.

The clarification was needed, said the EPA, because US Supreme Court rulings in 2001 and 2006 complicated the application of the act to a variety of undertakings and construction situations.

“For nearly a decade, members of Congress, state and local officials, industry, agriculture, environmental groups and the public asked for a rulemaking to provide clarity,” the EPA said, adding that the rule proposed on Tuesday would meet that goal.

While the EPA insisted that its proposed rule “does not protect any new types of waters, does not expand jurisdiction over ditches and does not broaden coverage of the Clean Water Act”, the NAHB argued to the contrary.

NAHB president Kevin Kelly agreed that while home builders and a broad coalition of business interests had pressed the EPA for a clarifying rule, “EPA’s proposal goes too far”.

Rather than clarify discrepancies in the agency’s regulations and the Supreme Court rulings, Kelly said: “Instead, EPA has added just about everything into its jurisdiction by expanding the definition of a ‘tributary’.”

Under the proposed rule, said Kelly, “even ditches and manmade canals, or any other feature that a regulator determines to have a bed, bank and high-water mark” will be subject to oversight by the agency, permitting and other requirements that will delay and even prevent housing development.

“It is a waste of taxpayer resources to treat a rainwater ditch with the same scrutiny as we would the Delaware Bay,” Kelly said.

But EPA administrator Gina McCarthy argued that the proposed rule is appropriate because “The health of rivers, lakes, bays and coastal waters depend on the streams and wetlands where they begin”.

Kelly warned that the rule, if made final as proposed, will “greatly increase the number of construction sites required to obtain appropriate permits, which will also result in delay or impede construction projects”.

He noted that the agency is already facing an “exorbitant backlog of permits, ranging between 15,000 and 20,000”.

Kelly noted that the CWA initially was enacted to protect navigable rivers and those used for interstate commerce, but that EPA regulation under the law has steadily crept further upstream.

He said that the proposed rule also will impact operations of farmers and ranchers who raise livestock.

“Even home owners could need wetlands permits before doing landscaping projects,” he said, if EPA regulators determine that their land includes a “tributary” subject to CWA jurisdiction.

The US Chamber of Commerce also raised an alarm over the EPA action, charging that “For decades, the EPA has been attempting to expand its jurisdiction over waters of the US, but the Supreme Court has held it in check through key rulings”.

“This latest attempt from EPA to make virtually every river, stream and creek in the US subject to the authority of the Clean Water Act would put the agency effectively in charge of zoning the entire country,” the Chamber said.

“This proposed definition would more than double the miles of waterway EPA regulates, which would have serious economic repercussions,” the Chamber added, saying that it would contest the proposed rule.

NAHB also said that it would challenge the proposed rule in comments to the agency.

The proposed rule is subject to a 90-day period of public comment and likely will be made final later this year.

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