NAHB members and staff met with officials from the White House Office of Management and Budget last week to repeat their concerns about the soon-to-be-finalized redefinition of “waters of the U.S.” under the Clean Water Act.
NAHB’s discussion focused on two very different areas: the arid Southwest and the coastal Southeast, both places where the potential impact of this rule on the home building industry is difficult to overstate.
In the Southwest, explained NAHB member Rob Anderson, a partner with the law firm Fennemore Craig in Phoenix, ephemeral streams — waterways that only appear after a rainstorm — comprise a vast majority of the stream network.
The Army Corps of Engineers has historically taken the position that these small, typically dry land features are generally not jurisdictional under the Clean Water Act, and thus do not require a federal permit before any land development or construction begins. However, a new, more expansive “tributary” definition would make these dry desert washes automatically jurisdictional.
The sheer number of costly permits would bring Southwest economies to a crawl with little environmental benefit, Anderson told officials. “Some of these features only flow once every 10 to 15 years and yet would meet the new definition of ‘tributary.’ It was not the intent of Congress to regulate every drop of water that happens to flow across the landscape. The ‘tributary’ definition must be limited to more continuously flowing waters,” he said