Your HBA as working for you in Washingting (here is how)

(September 20, 2017) Ever wonder what your Home Builders Association is doing for you in Washington DC and around the country?  Below is a report of the issues on which we are engaged:

1. Canadian Softwood Lumber

• The U.S. Department of Commerce imposed a 20% countervailing duty on Canadian lumber imports in April, and added 7% antidumping duties in June. 
• In late August, Commerce announced a delay in the final duties to Nov. 18. This will allow more time to negotiate a settlement. Collection of countervailing duties is suspended for now, but antidumping duties will continue to be collected. 
• NAHB is meeting with representatives with the Trump Administration and Congress as well as Canadian officials to address home builder concerns regarding price and availability of lumber. 
• These meetings are especially important because U.S. consumers cannot participate in trade disputes, although NAHB provided witness testimony during the International Trade Commission hearing on Sept. 12. 
• Generally, lumber prices have increased, but that may be partly due to wildfires in the Western U.S. and Canada. 
• NAHB is urging U.S. lumber producers to increase production for domestic consumption, and working to identify alternate foreign sources of dimensional lumber. 

2. Disaster Response

• In the aftermath of two devastating hurricanes, NAHB is working closely with state and local home builder associations in those areas to help them meet the needs of members affected by the storms. 
• We sent out an all-member email with information on how to donate to the recovery effort. 
• NAHB issued statements on hurricane-related advocacy. Our leadership conducted media interviews on flood-related topics, including the need for the National Flood Insurance Program (NFIP) reauthorization, building codes, rebuilding efforts and labor shortages. 
• We updated our online Disaster Recovery toolkit with new media talking points and safety information for contractors. 
• We added resources on hiring contractors and places to donate on our consumer Web page. 
• We are creating resources on business continuity; hiring reputable contractors; and best practices for flood damage repair work. 
• We will continue to reach out to the affected communities to see how to help in the rebuilding efforts. 
• With respect to resiliency, our Resiliency Working Group issued its final report and recommendations in July. Many of the recommendations are related to disaster preparedness, resiliency, recovery and communications. 
• The hurricanes have illustrated the importance of disaster response and planning for rebuilding, and the Resiliency Working Group will now help ensure NAHB can be a resource and problem solver after a natural disaster. 

3. Electronic Recordkeeping

• The Occupational Safety and Health Administration’s 2015 electronic reporting rule requires certain employers to electronically submit injury and illness data that they are mandated to keep under existing recordkeeping regulations. 
• The rule also contains anti-discrimination prohibitions to protect workers who notify an employer of a workrelated injury or illness. 
• NAHB has concerns about several elements of the rule, including the requirements for employers to submit records electronically to OSHA that would become publicly available.  In January, NAHB and other stakeholders filed a legal challenge. 
• On May 5, NAHB and other organizations submitted a petition to the Department of Labor (DOL) seeking a stay of implementation and enforcement of the rule, and requested OSHA re-open the rulemaking. 
• In June, OSHA announced it was extending the filing deadline for employers to submit electronic records to December, which would give OSHA more time to review the rule. 

4. Federal Flood Risk Management Standard

• In response to the charge led by NAHB and as part of President Trump’s Executive Order to expedite federal approval for infrastructure projects, the Administration revoked Executive Order 13690 and the Federal Flood Risk Management Standard (FFRMS). 
• Our advocacy efforts included participating in federal listening sessions and meetings; submitting comment letters to federal agencies; and requesting that President Trump revoke it. 
• This standard would have dramatically expanded regulated floodplain areas. 
• However, in response to the hurricanes, the Trump Administration may establish its own flood standard. 
• If the Administration chooses to do so, NAHB will work with the White House to develop an effective standard that does not place undue regulatory burdens on residential construction projects. 

5. Immigration

• The H-2B Temporary Non-Agricultural Worker program allows employers who cannot find local labor for short-term or seasonal jobs to fill those positions with temporary foreign workers. 
• There is an annual cap of 66,000 on H-2B visas issued in a fiscal year, but that cap excluded workers who had participated in the program within three years. 
• That “returning worker exemption” expired in September 2016 and has not been renewed by Congress. 
• In May, Congress approved a spending package for the remainder of FY 2017 that included language allowing the Department of Homeland Security (DHS) to raise the statutory cap for 2017 to allow additional visas. 
• In July, DHS announced it would make 15,000 more visas available, but only to employers who could demonstrate that their business would suffer “irreparable harm” without H-2B workers. 
• The next round of H-2B visas will become available on Oct. 1. NAHB hosted a free webinar to help employers learn if they qualify to apply for H-2B workers and how they can become certified employers under the program. 
• With Congress and the Administration focused on immigration enforcement, the prospect of creating a new guest worker program to benefit builders and specialty trades is highly unlikely. 
• NAHB continues to advocate for restoration of the returning worker exemption while looking for opportunities to expand and reform the H-2B program.

6. Low-Income Housing Tax Credit (LIHTC)

• On Aug. 1, NAHB Chairman Granger MacDonald testified before the Senate Finance Committee on “America’s Affordable Housing Crisis.” The hearing focused on the LIHTC. 
• Chairman MacDonald also discussed how lots and labor shortages, building material price increases and regulations affect housing affordability.

7. National Flood Insurance Program (NFIP)

• The NFIP was extended until Dec. 8 as part of a broader legislative package. 
• During NAHB’s Leg Con in June, builders spoke to their congressional delegations about provisions in the House Financial Services Committee’s flood insurance bill that negatively targeted new construction and grandfathered properties. 
• NAHB was able to convince the committee’s leadership to remove those provisions. 
• After Hurricanes Harvey and Irma, discussions about changing the program were put on hold as policymakers ensured home owners and communities had short-term certainty and financial aid. 
• NAHB will work with Congress on long-term legislation that ensures an affordable, available, predictable and financially stable NFIP.

8. Regulatory Reform

• President Trump has made regulatory reform one of his top priorities, and has asked each agency to evaluate existing regulations and identify ones that should be repealed, replaced or modified. 
• We have submitted recommendations to the Environmental Protection Agency (EPA), Department of Housing and Urban Development (HUD), Federal Emergency Management Agency (FEMA), National Marine Fisheries Service (NMFS), Fish and Wildlife Services (FWS), Department of Justice (DOJ) and Department of Energy (DOE), and will soon submit feedback to the Army Corps of Engineers. 
• NAHB will provide suggestions to DOL, OSHA and others once their notices are published. 
• We will review the 2017 Fall Regulatory Plan and Agenda upon its release and determine if our suggestions were incorporated. 
• The Small Business Administration (SBA) Office of Advocacy is also collecting input on regulatory reform through a series of nationwide Regulatory Roundtables; NAHB has had good representation at all roundtables to date. 
• As part of the Cleveland roundtable, NAHB member George Davis met with SBA officials at one of his construction developments. 
• NAHB will continue its outreach to HBAs and members as additional roundtables are announced. 
• On August 28, NAHB testified before the SBA’s Regulatory Fairness Board about the enforcement activities of federal agencies, particularly EPA and OSHA.

9. Overtime Rule

• Under a new rule that was set to go into effect Dec. 1, 2016, the Obama Administration doubled the annual salary level used to determine whether an employee qualifies for the professional, administrative and executive exemption to overtime eligibility from $23,660 to $47,476. 
• Under the new rule, the salary threshold would also be automatically adjusted every three years. 
• NAHB and many other industry groups challenged the rule in federal court. 
• We contended that DOL went beyond its authority under the Fair Labor Standards Act to allow the salary limit to automatically be re-set every year. The Administrative Procedures Act requires these updates be made through regular notice and comment periods. 
• In a victory for NAHB, a federal judge in Texas issued a preliminary injunction that temporarily barred the implementation of the rule. 
• On Aug. 31, the Texas federal court held the rule was invalid and the three-year automatic increase DOL included was similarly unlawful. 
• DOL’s appeal of the preliminary injunction is now moot and likely to be dismissed.

10. Smart Market Report

• Preliminary findings from them Green Residential Smart Market Report show that green building activity should increase over the next few years. Approximately 60 percent of surveyed builders expect it to be a significant share of their overall activity by 2022. This is nearly double from 2014, when only 32 percent of firms reported that level of green building. 
• Single- and multifamily home builders agree that energy efficiency and healthier indoor environments are key factors in building a green home, and have prioritized these elements in the construction process. 
• The Smart Market report found that ENERGY STAR is more popular in the single-family market while LEED and the National Green Building Standard (NGBS) are more popular with multifamily builders. 
• The Green Residential Smart Market Report is a biannual report released by NAHB and Dodge Data and Analytics (formerly McGraw Hill). The report reviews the history and future of green home construction in the single-family, multifamily and remodeling sectors.

11. Stormwater

• NAHB launched an online toolkit in August to help HBAs advocate for programs that provide a clear path to compliance, reduce redundancy and meet water quality goals. 
• The toolkit provides simple checklists that compare pros and cons of different regulatory approaches based on climate, geography, and local land use patterns. This data will help our members in conversations with state regulators. 
• As part of the toolkit launch, NAHB released A Developer’s Guide to Post-Construction Stormwater Regulation. This report provides a state-by-state breakdown on the top permitting issues affecting builders.

12. Tax Reform

• A team of congressional leaders and Administration officials known as the “Gang of Six” is developing a structure for tax reform, while President Trump is trying to garner nationwide support on the issue. 
• House Speaker Paul Ryan intends to move tax reform this fall. 
• Before Congress can address tax reform, it must pass a budget resolution to set up the procedural process known as reconciliation. This will allow tax reform to pass the Senate with only 50 votes. 
• However, there is growing resistance in the House to passing a budget resolution before members see the Gang of 6’s tax framework. To use the reconciliation process, the House and Senate must pass identical budget resolutions, which will be challenging.

13. Waters of the U.S. (WOTUS)

• On Oct. 11, the U.S. Supreme Court will hear oral arguments on whether the 2015 WOTUS rule should be litigated in federal trial court or the appellate court. 
• NAHB has argued that challenges to the WOTUS rule must be first heard at the trial court. 
• We need this clarity so we do not have to file two lawsuits when we challenge an EPA Clean Water Act regulation. 
• Meanwhile, the EPA plans to use a two-step process to develop a new WOTUS definition. 
• In the first step, the EPA has proposed to withdraw the 2015 WOTUS Rule and revert to the status quo. We expect the agency to finalize the withdrawal by early 2018. 
• The EPA also plans to develop a new WOTUS rule, and will soon take comments on the proposal. 
• NAHB is taking advantage of its unprecedented access to EPA Administrator Scott Pruitt, and is working with the agency on a new rule that is clear and limits jurisdiction of the Clean Water Act consistent with congressional intent. 
• In August, NAHB and the Dallas Builders Association hosted a meeting with Administrator Pruitt in Dallas to voice concerns and offer insight about the new rule. 
• NAHB and the Colorado Association of Home Builders are planning a similar meeting with Administrator Pruitt in Colorado Springs in October. 
• In late October, NAHB will provide recommendations on a revised WOTUS definition at a business-focused in-person listening session at EPA headquarters. 

For more information about these or other Federal government affairs issues, contact Michael Dey (mdey@hbaofgreenville.com).

Waters of the US definitions on the way out

The EPA and Army Corps of Engineers last month proposed to replace the 2015 definition of the term “waters of the United States” (WOTUS) with the definition that existed since 1986.

The agencies said the action is the first in a two-step process. In Step 2, the government will propose a new definition for WOTUS.

In the announcement, EPA Administrator Scott Pruitt stated that going back to the well-established 1986 definition allows the agencies to provide continuity and clarity to the regulated community while deliberating on a new definition.

And this time, the agencies said, the path to a new rule will be more public. “As we go through the rule making process, we will continue to make the implementation of the Clean Water Act Section 404 regulatory program as transparent as possible for the regulated public,” said Douglas Lamont, acting Assistant Secretary of the Army for Civil Works.

“NAHB applauds President Trump, the EPA and the Corps for taking the necessary actions to roll back this seriously flawed WOTUS rule that would harm housing affordability by requiring expensive and time-consuming federal permits for countless ditches, isolated ponds and dry channels,” NAHB chairman Granger MacDonald said in a press release.

“Earlier this year, the president honored a campaign promise made to home builders as he signed an executive order directing EPA and the Corps to begin the process of dismantling the controversial WOTUS rule. This is an important step forward to rework the flawed regulation that blatantly usurped state and local authority,” MacDonald said.

“NAHB looks forward to working with the administration, EPA Administrator Scott Pruitt and [Mr.] Lamont to develop a common-sense solution to protecting our nation’s waterways while taking into account the interests of local businesses and communities nationwide,” MacDonald said.

We Did It! WOTUS Rule Stayed by Sixth Circuit Court

After months of hard work by your Home Builders Association, including a lawsuit brought by the National Association of Home Builders and member assistance, the Waters of the U.S. (WOTUS) rule has been stayed nationwide by a 2-1 vote in the Sixth Circuit Court.

This rule, created by the Environmental Protection Agency (EPA) under the Clean Water Act, was based on flawed data and would have required all home builders and homeowners looking to build or renovate to inquire about any water found on the property. Their inquiry would have queued to the U.S. Army Corps of Engineers, the group that makes jurisdictional decisions and issues permits.  Before the WOTUS rule, the Corps of Engineers was taking six months to issue a jurisdictional determination.  The WOTUS rule was expected to significantly delay any new development and add a new layer of regulation to areas that were previously unaffected by the Clean Water Act.

This ruling is extremely beneficial to home builders, remodelers, and a direct result of the work done by your Home Builders Association on behalf of the entire home building industry. 

28 Reasons (and Counting) Why EPA Water Rule Should be Rescinded

Since the end of June, 28 state attorneys general, including South Carolina Attorney General Alan Wilson, have filed lawsuits seeking to overturn a federal rule that defines the “waters of the United States” and the jurisdictional scope of the Clean Water Act.

The National Association of Home Builders (NAHB) has also filed its own lawsuit against the Environmental Protection Agency and the U.S. Army Corps of Engineers in the U.S. District Court, Southern District of Texas, charging that EPA and the Corps are “set and determined to exert jurisdiction over virtually every water feature imaginable.”

The effort by local and state home builders associations to get their state attorney generals involved is important to prevent federal overreach that could place millions of additional acres of private land and countless miles of dry stream beds under federal jurisdiction.

The water rule, which will go into effect Aug. 28, is important to the home building industry because it changes what areas can be regulated by the federal government under the Clean Water Act and when builders and developers must obtain federal permits.

In addition to challenging the rule in the courts, NAHB continues to successfully engage legislators. With bipartisan support, the House recently approved H.R. 1732, the Regulatory Integrity Protection Act, which would require EPA and the Corps to withdraw their rule and develop a new plan to safeguard America’s waterways in consultation with state and local governments and other affected stakeholders, including small businesses.

NAHB is also urging the Senate to pass companion legislation, S. 1140, the Federal Water Quality Protection Act.

Members are encouraged to contact their senators and urge them to support this bill. Use these talking points as a guide to talk to elected officials and others about why the rule should be withdrawn.

Help Your Home Builders Association Defeat the EPA

Over the August congressional recess, please contact your members of Congress and urge them to call for the immediate withdrawal of the Environmental Protection Agency (EPA) final "waters of the U.S." (WOTUS) rule. Recently unveiled documents expose how the EPA dismissed legal and regulatory objections to the rule by the U.S. Army Corps of Engineers (Corps) and shed light on an EPA that is acting with little regard for the impact of the rule on home builders and home owners. Now, more than ever, we need your help in forcing the EPA to withdraw this flawed rule.

As we reported to you last week, the EPA has not been an honest broker and has made a mockery of the regulatory process. The recently unveiled documents confirm the long-held belief that the EPA forcefully advanced this rule without the requisite input and oversight of its co-authoring agency, the Corps. This is particularly disturbing because the WOTUS rule has always been presented as a joint effort between the two agencies – not solely an EPA rule.

These internal Corps memos outline the specific areas of concern that the Corps has and how EPA ignored its recommendations and input. The documents state that the regulation was arbitrarily written, is legally indefensible and would be extremely difficult to implement. They also reveal that many aspects of the rule are not rooted in science and that EPA grossly misrepresented Corps' data. The Corps disagreed so strongly with the final rule that it worked to distance itself, requesting all references to the Corps be removed from the economic analysis and all supporting documents.

We need your help today!

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For more information about the Waters of the US rule, click here.

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)

National Association of Home Builders Sues EPA, Corps of Engineers

On June 29, 2015, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers published regulations in the Federal Register that, if implemented as planned on August 28, will massively expand the Federal government's jurisdiction over private property under the guise of the Clean Water Act.  Many observers, including the National Association of Home Builders, believe the regulation is an illegal expansion of Federal government authority.

Today, Tom Woods, Chairman of the Board of the National Association of Home Builders, announced that your Home Builders Association has filed a lawsuit in U.S. District Court challenging the new rule.  Below is a statement issued by Chairman Woods:

Fulfilling the pledge that I made at the Spring Board of Directors Meeting, NAHB has filed suit seeking to overturn a federal rule that redefines "the waters of the U.S." and drastically expands the area that can be regulated by the federal government under the Clean Water Act. The rule will go into effect Aug. 28.

Brought against the Environmental Protection Agency and the Army Corps of Engineers in U.S. District Court, Southern District of Texas, the lawsuit charges that the two agencies are "set and determined to exert jurisdiction over virtually every water feature imaginable."

NAHB has been involved in trying to shape this rule since it was first proposed in April 2014, and urged significant changes to make it more workable. Despite some minor improvements, the final rule is so extreme that the federal government will actually regulate certain roadside ditches, isolated ponds, and channels that may flow only after a heavy rainfall.

Such intrusive federal encroachment will inevitably lead to bureaucratic delays, increased project costs and mitigation fees, and decreased housing affordability.

The lawsuit notes that the rule goes well beyond Congress' original intent when it enacted the Clean Water Act and ignores the jurisdictional limits already set forth by the U.S. Supreme Court.

NAHB has also been working to engage legislators on this rule. With bipartisan support, the House recently approved H.R. 1732, the Regulatory Integrity Protection Act, which would require EPA and the Corps to withdraw their rule and develop a new plan in consultation with state and local governments and other affected stakeholders, including small businesses.

NAHB is urging the Senate to pass companion legislation, S. 1140, the Federal Water Quality Protection Act.

NAHB was joined in the suit by other business and agricultural organizations, including: the American Farm Bureau Federation; the National Association of Manufacturers; the American Road and Transportation Builders Association; the American Petroleum Institute; the Leading Builders of America; the National Alliance of Forest Owners; the National Cattlemen's Beef Association; the National Corn Growers Association; the National Mining Association; the National Pork Producers; and the Public Lands Council.

Further EPA Overreach
In other news, your Home Builders Association achieved an important victory for builders when the U.S. House of Representatives passed H.R. 2042, the Ratepayer Protection Act of 2015, on June 25. The bill aims to curtail the Environmental Protection Agency’s (EPA’s) proposed Clean Power Plan rule, which would have a negative impact on the home building industry.

While EPA’s proposed rule is meant to regulate greenhouse gas (GHG) emissions from existing power plants, its broad interpretation reaches beyond the agency’s statutory authority. Specifically, EPA includes consumer energy efficiency and demand-side management in calculating state goals and as an allowable part of required state plans to reduce future GHG emissions.

However, as the National Association of Home Builders outlined in comments submitted to EPA, stricter energy codes would affect only new construction and EPA has no authority over building codes.

What’s more, the energy efficiency requirements on new homes will drastically increase costs to home buyers, without guaranteeing real emissions reductions. After all, no federal or state agency can control how much electrical power a home owner decides to use once the building is occupied.

The Ratepayer Protection Act, sponsored by Rep. Ed Whitfield (R-Ky.), allows states to delay compliance with the Clean Power Plan until the courts decide on the legality of the rule. In addition, the bill includes an opt-out provision for any state that determines compliance with the rule would have a negative impact on ratepayers.

Your Home Builders Association helped lead the effort to pass the bill as a member of the Partnership for a Better Energy Future, a coalition of business organizations representing over 80 percent of the U.S. economy.

A similar bill, the Affordable Reliable Electricity Now Act of 2015 (S. 1324), was introduced in the Senate and is expected to receive a committee vote in July.

Although EPA had originally planned to finalize its regulations by June 15, it now expects to release a final rule in August.