White House issues Executive Order addressing barriers to housing construction

Key Takeaways

On March 13, the White House issued an Executive Order (EO) titled “Removing Regulatory Barriers to Affordable Housing Home Construction.” The EO directs agencies to review policies that impact housing development and identify opportunities to streamline processes and reduce regulatory costs. It also directs HUD to develop regulatory best practices for states and local governments to reduce regulatory barriers to housing construction. Counties that manage public infrastructure, such as stormwater systems, may see reduced regulatory requirements. At the same time, HUD-issued best practices may inform one-size-fits-all state policies that preempt local building standards.

What does the EO do?

Within 60 days of the EO’s issuance date, the U.S. Department of Housing and Urban Development (HUD) is directed to develop a series of best practices for state and local governments to promote housing construction and streamline regulatory processes. The EO specifically identifies the following reforms:

• Reducing building permit “shot clocks” and fees, which may increase the administrative burden on local building departments as they’re required to meet more demanding permit processing timelines
• Allowing private providers to conduct building permit reviews and inspections
• Eliminating arbitrary or unreasonable building code standards, especially those governing green or alternative energy
• Reducing disparities between modular/manufactured housing and site-built housing, regarding construction, siting and aesthetic requirements
• Eliminating restrictions on peripheral development, which may impact local land use policies, such as urban growth boundaries that seek to limit development impacts in agricultural and greenbelt land outside the urban core

The EO also requires specified agencies – including the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) – to identify regulatory barriers to housing construction and make appropriate revisions to streamline processes and reduce costs. Specifically, the EPA and the Corps are directed to review and revise requirements related to stormwater, wetlands and other water resources, including:

• Stormwater discharge permits and Municipal Separate Stormwater (MS4) system requirements: MS4 permits require counties and other system owners to use a stormwater management program to reduce pollutant discharge
• Total Maximum Daily Load (TMDL) standards: Counties use TMDL standards to identify polluted watersheds and reduce contaminants to improve water quality
• Section 404 dredge and fill requirements, for both federal and state-assumed permitting authorities: Section 404 dredge and fill permits allow the U.S. Army Corps to authorize infrastructure projects such as building roads, bridges and installing utility lines in wetlands or waterways

Federal agencies are also instructed to examine energy-efficiency and water-use standards tied to housing programs, including requirements for manufactured housing and housing financed through the U.S. Department of Agriculture (USDA) and HUD. In addition, the Council on Environmental Quality (CEQ) will issue guidance on implementing the National Environmental Policy Act (NEPA) in ways that reduce burdens on housing and related infrastructure projects.

What does this mean for counties?

Counties play a central role in land use planning, zoning administration, permitting, development and environmental management. Changes to federal permitting, environmental review processes and housing program requirements may affect how counties coordinate with federal and state partners on development and infrastructure projects that support housing growth.

Additionally, new HUD-issued regulatory best practices may provide a blueprint for state-level preemption, particularly for local building department activities. NACo will continue to monitor threats to local authority as federal agency guidance is formalized.