NCC To Seek Legislative Solution to Issue

On October 25, the U.S. Court of Appeals for the Fourth Circuit issued its decision in the MHI National Communities Council’s lawsuit against the U.S. Environmental Protection Agency (EPA) over its submetering policy for consecutive water systems. While the court agreed with many of the NCC’s arguments in the case, it did not find that EPA acted in an arbitrary and capricious manner when it eliminated Safe Drinking Water Act (SDWA) testing requirements in December 2003 for the owners of single apartment buildings who submeter water from a municipality and bill residents for their usage but not for other property types, such as manufactured home communities. EPA redefined what “selling” water means under the SDWA in the December 2003 policy, which is what triggers the testing requirements. EPA made the arbitrary distinction that submetering and billing apartment residents for water consumption is not “selling” water but it is for community residents, which is what triggered the NCC’s legal challenge.

In essence, the court deferred to EPA and its authority under the SDWA to maintain water quality even though EPA has not proven a nexus between the act of submetering and an impact on water quality. The NCC vigorously disagrees with this ruling. The NCC has not been relying on the court to settle the issue permanently and has already been preparing to seek a legislative remedy in the next session of Congress. Now that the court has issued a decision, the NCC and its supporters on Capitol Hill are ready to move forward.

MHI members with questions may contact Mike O’Brien at (703) 558-0652 or mobrien@mfghome.org or Sherri Cabrera at (703) 558-0659 or sherri@mfghome.org.

To obtain a copy of the decision, visit the court’s website by clicking here.