NAHB Chairman Tom Woods on EPAs New Rule and Flawed Data

The letter below to HBA members is from Tom Woods, a Home Builder from Kansas City and Chairman of the National Association of Home Builders.

This week, we learned that before the Environmental Protection Agency released its final version of the waters of the United States rule, the U.S. Army Corps of Engineers told EPA it was using flawed technical and scientific analysis to craft the regulation – methods so indefensible that the Corps wanted no part of the critical documents that EPA used to support the rule.

This new information is yet another example of how EPA has flaunted the law in completing this rulemaking.

On behalf of our members, and on behalf of the new home buyers being squeezed out of their chance at the American Dream as they suffer the fallout of this regulatory overload, I think this is scandalous. And I said just that in a press release and blog post.

I want you to know that NAHB is calling on EPA to immediately drop its plans to change the way the Clean Water Act is enforced and how "waters of the United States" are defined.

Many of the scientific and economic justifications to support the broad regulatory definitions in this rule – already a new low in federal regulatory overreach – have turned out to not be worth the paper they're printed on. They fly in the face of the Corps' recommendations, and as you know, the Corps is in charge of jurisdictional decisions and issuing the permits that allow homes to be built.

By ignoring stakeholders and willingly choosing which regulations to follow, EPA has not only made a mockery of the regulatory process, but it's impeding our nation's housing recovery and economic growth with this land grab.

Please be assured that we don't plan to turn down the heat on this latest public affront. NAHB will continue to work to make a difference for your business and for housing affordability, and I thank you for your support.

Tom Woods, Chairman, National Association of Home Builders


Interested in why the U.S. Army Corps of Engineers thinks the EPA's rule is flawed?

NOT A JOINT ENDEAVOR: 
“The preamble to the proposed rule and the draft preamble to the draft rule state that the rulemaking has been a joint effort of the EPA and the Corps, and that both agencies have jointly made significant findings, reached important conclusions, and stand behind the final rule. These statements are not accurate.” (Letter from General Peabody to Assistant Secretary of the Army, 4/27/15)

“Shall not identify Corps as Author, co-author, or substantive contributor.” (Letter from General Peabody to the Assistant Secretary of the Army, 5/15/15)

“To the extent that the term ‘agencies’ includes the Corps any such references should be removed.” (Letter from General Peabody to the Assistant Secretary of the Army, 5/15/15)

“The Corps of Engineers logo should be removed from those documents.” (Letter from General Peabody to the Assistant Secretary of the Army, 5/15/15)

THE SCIENCE OF THE RULE:
“Corps data to EPA has been selectively applied out of context, and mixes terminology and disparate data sets. In the Corps judgement, these documents contain numerous inappropriate assumptions with no connection to the data provided, misapplied data, analytical deficiencies and logical inconsistencies.” (Letter from General Peabody to the Assistant Secretary of the Army, 5/15/15)

“The 1500 ft limitation is not supported by science or law and thus is legally vulnerable.” (Lance Wood memo to General Peabody, 4/24/15, Pg. 5)

“The 4000 ft bright line rule is not based on any principle of science, hydrology or law, and thus is legally vulnerable.” (Lance Wood memo to General Peabody, 4/24/15, Pg. 9)

“Gross misrepresentation of Corps raw data” (Jennifer Moyer memo to General Peabody, 5/15/15, Pg. 3)

THE LEGAL JUSTIFICATION FOR THE RULE
“It will be legally vulnerable, difficult to defend in court, difficult for the Corps to explain or justify and challenging for the Corps to implement.” (Lance Wood memo to General Peabody, 4/24/15, Pg. 5)

“Rule not likely to survive judicial review in federal courts” (Lance Wood memo to General Peabody, 4/24/15, Pg. 9)

“Inconsistent with SWANCC and Rapanos” (Lance Wood memo to General Peabody, 4/24/15, Pg. 10)

“The draft final rule continues to depart significantly from the version provided for public comments, and that the corps recommendations relation to our serious concerns have gone unaddressed. Specifically, the current draft final rule contradicts long-standing and well-established legal principles undergirding CWA 404 regulations and regulatory practices, especially the decisive Rapanos Supreme Court decision. The rule’s contradictions with legal principles generate multiple legal and technical consequences that in the view of the Corps would be fatal to the rule in its current form.” (Letter from General Peabody to Assistant Secretary of the Army, 4/27/15)