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In a 2001 decision, Solid Waste Agency of Northern Cook County vs. U.S. Army Corps of Engineers, the Supreme Court ruled that only “navigable waters” are subject to permitting requirements under the Clean Water Act.
'It’s difficult to see how a ditch could be navigable, even if it had some water in it, but that hasn’t discouraged various Corps districts from expanding the definition and finding 'waters of the U.S.' in some unlikely places,' said NAHB Executive Vice President and CEO Jerry Howard.
Passed by Congress in 1972, the Clean Water Act defines “navigable waters” as “the waters of the United States, including the territorial seas.” The law prohibits discharging pollutants into those waters without permits issued by the federal government or a qualifying state agency.
An exception to the discharge prohibition is found in Sec. 404 of the law, which authorizes the U.S. Army Corps of Engineers to issue permits for the “discharge of dredged or fill material into the navigable waters at specified disposal sites.”
“Unfortunately,” said Howard, “NAHB members are being required to apply for, and obtain, Sec. 404 permits to develop in or around navigable waters that simply don’t exist. And determining where those non-existent navigable waters might appear is difficult because the field offices of the Corps define them differently. Dry ditches that are navigable in Delaware may not be considered navigable in other parts of the country.” (See related story in this issue of NBN Online.)
“The regulation of development activities in man-made drainage ditches may sound absurd, but it is no laughing matter,” he said. Under the current enforcement of the Clean Water Act, there is no clarity or consistency in determining the waters that are subject to federal wetlands regulation, yet property owners can face a $27,500 fine and up to one year in jail if they violate the law.
“The current wetlands regulatory process is unfair, and NAHB members deserve far better,” said Howard. “That is why the association is exploring a variety of legal and regulatory solutions to this problem.”
In the case of the HBA of Delaware, NAHB is advocating the common-sense position that dry ditches should fall outside the regulatory definition of areas the Corps has authority over. In written comments to the agency, and in testimony before Congress, NAHB’s message is that the Supreme Court has made it clear which areas can be regulated under the Clean Water Act and which cannot.
Making matters worse, on June 12 the U.S. Fourth Circuit Court of Appeals ruled in U.S. v. Deaton that the Corps can regulate man-made roadside ditches in the mid-Atlantic region. This decision could complicate the regulatory situation in Delaware.
“The regulation of man-made ditches is degrading to efforts to preserve the natural water resources of this nation,” said Howard. “It is an impediment to building the housing that our growing population needs. It doesn’t make sense, and it is another disturbing example of how federal wetlands regulation has grown out of control.”
For more information on litigation relating to the Clean Water Act, e-mail Tom Ward at NAHB or call him at 800-368-5242 x8230. To learn more about Clean Water Act regulation, e-mail Chandler Morse or call him at x8327, or e-mail Susan Asmus or call her at x8538.
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