WASHINGTON, D.C. – June 4, 2015 – (RealEstateRama) — The National Association of Home Builders (NAHB) told Congress today that the final rule redefining the scope of waters protected under the Clean Water Act by the Environmental Protection Agency and U.S. Army Corps of Engineers falls well short of providing the clarity and certainty that the regulated community seeks.
Testifying on behalf of NAHB before the House Science, Space and Technology Committee, Bob Kerr, president of Kerr Environmental Services, an environmental consulting and water resources engineering firm based in Virginia Beach, Va., said the rule fails to follow the intent of Congress and Supreme Court precedent, and it does not acknowledge the states’ role in regulating their own waters.
“This rule will increase federal regulatory power over private property and will lead to increased permit requirements, project delays and avoidance and mitigation costs,” said Kerr. “Equally important, these changes will not significantly improve water quality because much of the rule improperly encompasses water features that the states already have the authority to regulate.”
The rule, which will go into effect by mid-August, establishes a broad definition of tributaries which, for the first time, includes ditches. It will also allow federal agencies to regulate adjacent non-wetlands located more than a quarter-mile from a traditional navigable water and isolated ponds located within the 100-year floodplain.
Kerr expressed concern that the increased regulation under the new rule will harm his business because the additional layers of red tape will add more time and money to projects he takes on. Moreover, his firm no longer offers clients a fixed rate to obtain an expedited Section 404 Nationwide Permit because it is too difficult to secure those permits in a predictable length of time. This new rule only exacerbates this situation.
“Not knowing their permitting costs in advance increases the financial risk for my clients,” he said. “In some cases, they will decide not to pursue projects as a result. That is not good for my business.”
Stating that the Supreme Court has twice affirmed that the Clean Water Act places limits on federal authority and that the rule permits the federal government to supplant the role of the states in regulating intrastate waters, Kerr called on Congress to act now.
The House recently passed legislation that would force the EPA and the Corps to withdraw this rule and develop a new plan after the agencies go back and consult with state and local governments, conduct discussions with small business stakeholders as mandated under the Regulatory Flexibility Act, and produce an accurate cost-benefit analysis.
Companion legislation, S. 1140, the Federal Water Quality Protection Act, is pending in the Senate.
“Enacting the Senate bill gets us back on track to where we need to be, which is establishing a workable and sound definition of ‘waters of the United States,’” said Kerr.