Week of December 8, 2008
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‘Navigable’ Waters Definition Murky After New Decisions

Revised guidance documents and decisions last week by the U.S. Supreme Court, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers have added more fuel to a long-standing debate among regulators, advocacy groups and builders and developers over Clean Water Act jurisdiction.

On Dec. 1, denying a petition to review a Clean Water Act case in United States v. McWane, the nation’s highest court sent a strong signal that it wants to leave jurisdictional questions to the regulators.

Responding to the Supreme Court’s 2006 Rapanos ruling that left unanswered the question of what constitutes a “traditional navigable water,” on Dec. 2 the EPA and the Corps repeated an earlier declaration that they “generally” will not assert Clean Water Act jurisdiction over upland roadside drainage ditches or certain desert washes with infrequent water flow.

But on the following day, Dec. 3, the EPA declared that certain reaches of the Santa Cruz River in Tucson, Ariz. are traditional navigable waters — even though historical records indicate that the river has never been used for boating or shipping.

As a result, the Obama Administration will have to decide how to implement the newly expanded — and still inconclusive — guidance document and what to do about the agencies’ broader definitions of jurisdiction. Until then, jurisdictional decisions are likely to remain in turmoil.

“What we have said all along holds true,” said NAHB Chairman Sandy Dunn. “There is a world of difference between regulating the Mississippi River and claiming jurisdiction over what amounts to a drainage ditch or irrigation pond. The first makes sense. The latter is overreaching — something that Congress never intended when it passed the Clean Water Act in 1972.”

However, the decision in Arizona indicates that the agencies appear to adhere to a much broader definition of waters that should be considered navigable in the “traditional” sense, said NAHB Staff Vice President for Litigation Duane Desiderio.

“This confusion means that we can expect to see more litigation in the federal courts,” he added. "We all agree that the Clean Water Act covers more than just traditional navigable waters. But there's a major problem when the federal agencies consider isolated ponds, or creeks that are wet only from storms, as water bodies that have been subject to traditional federal control for hundreds of years."

The guidance is important to the home building industry because it shapes how builders and developers determine whether they must obtain permits to start construction projects in protected areas.

If a piece of property near a river or wetland is declared jurisdictional under the Clean Water Act, it is subject to a long, confusing and often arbitrary ordeal of paperwork and inspections before construction can begin; sometimes this process has little correlation to the environmental value of the resources that are intended to be protected.

“The more you can give definition to the term ‘navigable’, the more people can understand what it means,” said Susan Asmus, NAHB staff vice president for regulatory affairs. “But when the new guidance defines ‘navigable’ as ‘susceptible to navigation’ or ‘adjacent’ as ‘reasonably close proximity,’ it doesn’t quite get us there.”

Rather than issuing confusing guidance — which only leads to confusion over what is jurisdictional, resulting in lawsuits from the regulated community or from conservation groups, EPA should promulgate a ruling that makes it clear to all parties, she said.

“The challenge with the Clean Water Act is that it has never been implemented in the way it was designed to be implemented. Instead, it’s been directed by lawsuits, and that is not the way the best laws are implemented,” Asmus said.

“The Supreme Court makes a ruling, the agencies interpret it and then everyone disagrees, and you’re off on a bad foot and it’s really hard to back up and start over,” she said. “NAHB believes that the EPA and the Corps should do a rulemaking. It’s a better way to make lasting policy.”

For more information, e-mail Calli Schmidt at NAHB, or call her at 800-368-5242 x8132.

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