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New Wetlands Rules Easier to Read, But Not Totally Clear
The U.S. Army Corps of Engineers has released proposed regulations for the 2007 Nationwide Permits program, and while it has kept its promise to make the document a little easier to read, it remains to be seen how the program will be carried out in the field, according to NAHB environmental and legal staff.
Meanwhile, late last month the U.S. District Court, ruling in National Association of Home Builders v. U.S. Army Corps of Engineers, denied NAHB’s request for more clarity in the regulations and justification for the ever-shrinking threshold for requiring nationwide permits, which has gone from 10 acres to three acres to one-half acre.
“The Army Corps of Engineers makes the threshold smaller without offering any reason, and the court says the threshold should stand because the Corps says so,” said Duane Desiderio, NAHB staff vice president for legal affairs. “Where is the logic in that?”
The lawsuit was based on the 2002 version of the Nationwide Permit program.
The Corps updates the regulations every five years, and home builders will notice four new features in the new permit, NWP 29, said Gary Suskauer, an environmental policy analyst at the association:
- There is now a permit specifically for single-family and multifamily residential development, instead of one permit lumping in home builders with industrial and commercial construction. This has been proposed, the Corps says, “because residential developments differ from commercial and institutional developments” and they “are often subject to different state and local requirements.”
- The threshold for the permit requirement will remain at one-half acre. However, in response to recent Supreme Court opinions on the regulation of ditches in the Rapanos and Carabel cases, the Corps will now allow a case-by-case waiver of a rule not allowing development to affect more than 300 linear feet of streambed per permit. The waiver would apply to intermittent and ephemeral streams, if the effects are minimal.
- The Corps will now require pre-construction notification on all projects. Under the 2002 permit program, notification was required only for projects affecting more than one-tenth of an acre.
- There is a new Nationwide Permit “B” for discharges into ditches and canals, but NAHB is still studying the document’s wording to understand its repercussions.
The General Conditions (GCs) of the permits have also been rewritten to make them easier to read and to facilitate compliance, according to the Corps. And GC 10, “Fills within 100-Year Floodplains” (formerly GC 26), has been simplified to require permit holders to comply with all applicable state or local requirements that have been approved by the Federal Emergency Management Agency. In a departure from prohibitions included in the previous NWPs, floodplain impacts will be addressed on a case-by-case basis during the pre-construction notification process.
Unfortunately, said Suskauer, the GCs have also been entirely reordered, so they will have to be studied before builders and analysts can compare them further to the 2002 version.
For more information, e-mail Calli Schmidt at NAHB, or call her at 800-368-5242 x8132.
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