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Agencies Provide Guidance on Wetlands Jurisdiction
New guidance from the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers gives builders a little more clarity when it comes to deciding the places where the agencies can claim jurisdiction under the Clean Water Act.
NAHB Environmental Issues Committee members and regulatory staff are studying the new guidance, which was effective immediately when it was released June 5. EPA and the Corps will take public comments until December.
The guidance was spurred by the U.S. Supreme Court's decision in June 2006 when it handed down its opinion in the Rapanos and Carabell Clean Water Act cases. Justices asked the EPA to issue the document to give both their field staff and the regulated community a better idea of what the agencies consider their jurisdictions to be.
The year-long wait for guidance resulted in further delays for builders seeking permits, even though the Corps’ district offices were told to continue business as usual in a July 2006 memo.
Developer Bard Rozelle, of Rozelle Construction in Appleton, Wis., told NAHB he’s been waiting three years for a permit to do work on a multifamily construction site. While the Corps has cut down the number of jurisdictional determinations awaiting a final decision to 6,000, it is unknown how many permits are still pending.
The guidance outlines three typical circumstances for a prospective building site and what might happen:
- Areas that will always be subject to jurisdiction include traditional navigable waters, wetlands adjacent to traditional navigable waters and non-navigable tributaries that feed into navigable waters and have at least seasonal (three months’) flow.
- Areas that are likely not subject to jurisdiction include swales and water bodies that exist solely because of erosion (gullies and small washes), ditches without a permanent flow of water and that drain into uplands, and any water body or wetland that has already been determined non-jurisdictional in previous court cases.
- Areas that may be subject to jurisdiction if they have a “significant nexus to a traditionally navigable water,” such as water features that don’t fit one of the other jurisdictional categories and have a “demonstrated and documented” relationship and significantly affect the chemical, physical or biological integrity of the traditional navigable water downstream. When that happens, the agencies can claim jurisdiction over all “similarly situated” land in that area.
NAHB issued a Wetlands Issue Alert June 6 with more detail about the new guidance.
“In the end, for certain areas, the guidance will help to clarify what areas can and cannot be deemed jurisdictional,” NAHB said in the alert. The guidance, however, asserts an expanded oversight role for EPA, which could make matters worse. For those areas that are subjected to the significant nexus test (estimated to encompass 60% of all determinations), EPA has the opportunity to participate in the decision-making.
“At the same time, it will subject other wet spots to what could be a lengthy and onerous process to determine whether the federal agencies can regulate them, not to mention the lengthy permitting process that will follow,” the alert said. While the guidelines suggest deadlines and timelines intended to ensure that the process is efficient, time will tell whether suggested timelines alone are sufficient to meet this result.”
For more information, e-mail Calli Schmidt at NAHB, or call her at 800-368-5242 x8132.
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