This piece was originally published in The Hill.
The Biden administration’s misguided plan to revise the Navigable Waters Protection Rule (NWPR) threatens to exacerbate the nation’s housing affordability crisis, trample states’ rights, and do little to improve the quality of the nation’s waterways.
Put into effect during the Trump administration, the NWPR is a sound regulation that finalized a new definition for “waters of the United States” (WOTUS) that boosted housing affordability by making the federal permitting process more predictable and reliable. By excluding remote, isolated, and transitory waters from federal jurisdiction, the NWPR has effectively:
- corrected the vast federal overreach of prior rules,
- restored common sense and predictability to the federal permitting process,
- distinguished where federal jurisdiction ends and where a state’s authority begins,
- reduced overall project costs by avoiding extended environmental reviews, and
- maintained stringent environmental protection of our nation’s waterways.
Most importantly, the NWPR provides clarity on what defines traditional navigable waters and wetlands, establishing national consistency and greater certainty that landowners, businesses, developers, and the American people deserve. The regulation allows many builders and developers to more efficiently invest in local communities without burdensome delays and to forego spending up to tens of thousands of dollars to hire unnecessary engineering and environmental experts. In other words, they can focus on building communities instead of meeting with consultants and lawyers.
In partnership with states and tribes, the NWPR implements the overall objective of the Clean Water Act: restoring and maintaining the integrity of the nation’s waters. The NWPR ensures that the Environmental Protection Agency (EPA) continues to assert federal authority over those traditional navigable waters that Congress intended to be regulated by the federal government while recognizing that states retain their authority to regulate their own water resources.
In seeking to revisit this issue, the Biden administration said that EPA and the U.S. Army Corps of Engineers (Corps) “are committed to meaningful stakeholder engagement to ensure that a revised definition of WOTUS considers essential clean water protections, as well as how the use of water supports key economic sectors.”
One can only hope that the administration follows through on this pledge because it was a very different story when the Obama administration revisited this issue. The 2015 WOTUS rule vastly expanded federal overreach to include man-made ditches, isolated ponds, as well as ephemeral features found on private property. This needlessly raised housing costs, infringed upon states’ rights, harmed state- and locally-led efforts to protect clean water, and added unnecessary regulatory burdens to small businesses that cost jobs and hurt economic growth.
The 2015 rule was rammed through without going through the proper rulemaking process. Not only did EPA issue the rule without determining the significant effects it would have on small businesses — as required by law — the agency also disregarded the warning from the Corps that the regulation was based on flawed technical and scientific data. The Corps said the rule “will be legally vulnerable, difficult to defend in court, difficult for the Corps to explain or justify and challenging for the Corps to implement.”
This is why federal courts ruled that the 2015 rule was illegal and halted its implementation. Moreover, 31 states filed lawsuits in various federal courts because the states believed that the rule was fatally flawed.
Americans deserve environmental regulations based on sound scientific data which create a workable regulatory environment and protect the nation’s waterways and economic interests. We recently visited a housing development in Pella, Iowa, with Reps. Mariannette Miller-Meeks (R-Iowa) and Bill Johnson (R-Ohio) as part of a Congressional Western Caucus field tour to learn about the harmful impacts a return to the 2015 WOTUS rule — or policies similar to it — would have on rural communities. We heard firsthand what we know to be true: Unnecessary barriers in federal regulation discourage builders and developers from creating sustainable communities with low environmental impacts, which results in higher building costs and higher home prices for Americans.
It is already difficult for builders to keep up with the growing demand for housing under mounting regulatory burdens. Permitting and regulatory compliance account for nearly 25 percent of the price of a single-family home. These costs are passed on to homeowners, harm housing affordability, and make it increasingly difficult for many younger American families to get a toehold on the homeownership ladder.
We support practical regulations that maintain state and local conservation efforts and enable home builders to provide housing at affordable prices. The NWPR has successfully implemented environmental protections that better support sustainable efforts by America’s builders, farmers, and manufacturers. The Biden administration must maintain this critical balance established by the NWPR and recognize that we should enable builders to make environmentally-friendly homes more affordable for Americans, not less.
Dan Newhouse represents Washington’s 4th District and serves as chairman of the Congressional Western Caucus. Chuck Fowke is a custom home builder who serves as Chairman of the National Association of Home Builders.
