New EPA Rules Will Discourage Critically Needed Housing Production, Creates More Confusion than Clarity

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ARLINGTON, VA | January 3, 2023 -  The National Apartment Association and the National Multifamily Housing Council express their disappointment in a regulation the EPA issued re-defining and expanding what “waters of the U.S.” means under the Clean Water Act.   

While the apartment industry strongly supports protecting our water resources, we cannot support the changes issued by the EPA. This federal overreach will greatly expand the universe of properties, including many with only a tenuous relationship to a body of water, required to seek very expensive federal permits to develop or redevelop housing.  

These additional hurdles will create permitting delays, add development costs and create additional legal risks that will exacerbate the nation’s housing affordability crisis. Simply determining whether a property needs a federal permit is an expensive endeavor. 

Furthermore, they are an expensive, but unnecessary overlay given that states and localities have their own water protection rules. If the U.S. hopes to address our housing affordability crisis, we need smart regulation. Research by NMHC and the National Association of Home Builders finds that regulations account for 40% of multifamily development costs. 

They also fail to deliver the clarity the industry has sought after two decades of numerous lawsuits, failed congressional reform efforts and inconsistent rulemakings. Without such clarity, property owners are deterred from undertaking critically needed housing construction and development projects. 

In addition, this aggressive EPA rulemaking comes despite knowing that a Supreme Court ruling on the federal jurisdiction under the CWA is forthcoming after oral arguments in October (Sackett v. EPA). Issuing this rule now will require businesses to spend significant time and resources to comply with a rule that may be inconsistent with the Supreme Court’s decision expected in a matter of months.

For more than 26 years, the National Apartment Association (NAA) and the National Multifamily Housing Council (NMHC) have partnered on behalf of America's apartment industry. Drawing on the knowledge and policy expertise of staff in Washington, D.C., as well as the advocacy power of 141 NAA state and local affiliated associations, NAA and NMHC provide a single voice for developers, owners and operators of multifamily rental housing. One-third of all Americans rent their housing, and 40 million of them live in an apartment home.