Corps Official Hears Wetlands Regulation Complaints
In a recent meeting with George Dunlap, the Army’s deputy assistant secretary, members of the NAHB Environmental Issues Committee and other builders and developers received a better understanding of the U.S. Army Corps of Engineers and its wetlands permitting program.
Dunlap outlined the three goals that President Bush has directed the Corps to implement during his administration: defining the jurisdictional reach of the Clean Water Act; refining the permitting process to make it predictable, consistent and reliable; and taking a more science-based approach to decisions on mitigation as a condition of receiving a permit.
When NAHB members presented specific examples of the Corps’ overreaching, Dunlap said there is not much he can do. Congress must change the law to make the process clearer, he said. In the meantime, the Corps is trying to avoid making interpretations on the breadth of its jurisdiction and not taking sides so it can stay out of lawsuits.
“I can’t change the law,” Dunlap said, “Or we will invite judges to take over. We must protect this industry from judicial interference.”
No Way to Treat an American Citizen
Hoping for relief from what one Florida developer called “a shameful way to treat an American citizen,” members came armed with detailed examples of missed deadlines, painfully slow permit approval processes and even “regulatory blackmail” from local Corps officials asserting jurisdictional authority where none exists.
An Ohio builder brought documents detailing problems such as three- to nine-month waits for reviews to be scheduled, Corps workers cancelling inspections because they have run out of money in their travel budgets and other customer service issues.
The Corps does not have enough employees to adequately address the permit applications it receives each year, although it did process 80,000 permits in 2005, Dunlap said. A $40 million budget increase over the last five years is helping, but also must pay for advanced information technology tools in addition to more personnel, he said.
The Corps is also working on ways to encourage consistency among its 38 districts, which Dunlap said are very decentralized. Builders said they would like to know that if a particular water feature is not considered to be under the Corps’ purview in one district, it won’t be in any district. Similarly, they want certainty that what they are being required to do in exchange for a permit is similar to what others with similar projects are required to provide.
But at this point, that’s asking too much, Corps officials acknowledge. Right now, the Corps’ first step is to get all the engineers within each district to agree on the same jurisdictional interpretation. Officials are gathering charts, photos, plans and other documents to create a user manual for the Corps employees so they have examples to which they can refer.
Dunlap also said that builders need to keep a closer eye on engineering consultants and insist that the data they present with any permit applications is complete — but agreed with one builder that waiting eight months to hear that the permit is incomplete is too long.
Changes to Nationwide Permits on the Way
A Georgia builder said that in his district, the Corps says the burden of proof is on the landowner to determine that the Corps should not have jurisdiction under the Clean Water Act. In fact, it should be the opposite, agreed Dunlap: the Corps has the burden of proof to claim jurisdiction. Dunlap and Chip Smith, assistant for environmental and regulatory affairs, suggested that the builder contact their office with details.
Smith also told builders to expect a draft of proposed changes to the Nationwide Permit, the current version of which expires next year. Nationwide permits are important tools for property owners who plan to complete projects that only have minimal impacts on the environment. So far, 30% of the excessive wording and redundancies have been eliminated from the permits to make them clearer and easier to follow, he said, and he looks forward to getting additional comments when the draft is published later this year.
When the draft is published, NAHB will offer industry opinions during the 60-day comment period.
For more information, e-mail Gary Suskauer at NAHB, or call him at 800-368-5242 x8327.