Regulators Backing Down From Ditch Oversight
The U.S. Army Corps of Engineers has agreed to stop enforcing the so-called Philadelphia Ditch Rule, under which it had asserted jurisdiction to regulate common roadside ditches as "navigable waters."
The decision provides further indication that the Corps and the U.S. Environmental Protection Agency are beginning to reassess how builders and developers should be regulated under the Clean Water Act, following the recent Supreme Court decision in the Rapanos and Carabell cases.
In New Mexico, the Corps on July 20 withdrew a previous requirement for a Clean Water Act Section 404 wetlands permit it had imposed on Sivage Community Development, which has been planning to build a community on a 354-acre plot near the town of Los Lunas.
The Corps told the company that it had reevaluated the information submitted for the permit, which by late June had cost the company $30,000 in consultant fees and delayed starting the project by 10 months.
NAHB filed suit in March over the Ditch Rule, arguing that it had been issued without following appropriate administrative rulemaking procedures when the Corps’ Philadelphia regional office told its agents to treat all upland ditches as navigable waters of the United States, triggering their regulation under the act.
"We have been fighting for a clear, consistent definition of 'navigable waters' for years, mainly because costs and delays associated with compliance have such a significant effect on housing affordability and often result in environmentally unsound land-use decisions," said NAHB President David Pressly. "It sounds like the federal government is listening, and finally acting, on our repeated requests. This is a big win for housing affordability."
The U.S. District Court for the District of Columbia entered an order on Aug. 4 sending the rule back to the agency for reconsideration.
According to a Department of Housing and Urban Development study on factors affecting housing affordability, regulatory costs, which include the cost of complying with wetlands rules, can top $40,000 per home.
The decision to end Ditch Rule enforcement is significant because it is the first action by the agency on Clean Water Act regulation since the Supreme Court's decision on the Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers cases in June. At that time, the justices urged the Corps to come up with a clearer definition that would provide sensible, uniform federal guidance.
"While the majority of justices in the Rapanos and Carabell cases indicated that they want to rein in the Corps' broad interpretation of its regulatory jurisdiction, it's likely that any new guidance or rule will address more than just navigable lakes and bays, rivers and the wetlands next to them," Pressly said. "And that's exactly how it should be. We need to protect these precious resources.
"The problem is that the Corps didn't know where to stop, but now there's a clear line drawn in the sand. With today's order, a foundation has been laid for sensible, environmentally sound and consistent guidelines — not just in the Philadelphia region, but all over the country," Pressly said.
For more information, e-mail Calli Schmidt at NAHB, or call her at 800-368-5242 x8132.