Clean Water Act proposals go too far, NAHB tells Senate

Proposed legislation that would broaden the authority of the Clean Water Act is a leap in the wrong direction, the National Association of Home Builders (NAHB) told the U.S. Senate Committee on Environment and Public Works. 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 stormwater runoff from construction sites. But NAHB is concerned about broadening the scope of the Act...

WASHINGTON, Dec. 13 -- Proposed legislation that would broaden the authority of the Clean Water Act is a leap in the wrong direction, the National Association of Home Builders (NAHB) told the U.S. Senate Committee on Environment and Public Works today.

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 stormwater runoff from construction sites. "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 hearing.

But broadening the scope of the Act to include all waters -- including roadside ditches -- within its regulatory reach loads on more regulation without a corresponding environmental benefit, Desiderio explained.

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 water bodies 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 Clean Water Act's intention since it was enacted 35 years ago. In 2006, the U.S. Supreme Court issued a decision in Rapanos and Carabell that failed to garner a majority of the Court. However, lower courts understand that for a water feature 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 expansive 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. But there is no evidence that Congress ever intended to sweep such isolated and remote features into the federal regulatory net, he said.

Builders have reported long backlogs in processing permit applications and in some areas that process has come to a standstill, obstructing all residential construction.

Solving these thorny issues of jurisdiction by expanding Clean Water Act authority to cover all waters, everywhere, would add significant time and costs for both regulators and builders, and will adversely affect the cost of housing, Desiderio said. However, he emphasized that "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... 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."

The National Association of Home Builders is a Washington-based trade association representing more than 235,000 members involved in home building, remodeling, multifamily construction, property management, subcontracting, design, housing finance, building product manufacturing and other aspects of residential and light commercial construction.

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