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NAHB has requested an extension of a July 1 deadline for comments on draft guidance from the Environmental Protection Agency and the U.S. Army Corps of Engineers identifying waters subject to federal jurisdiction under the Clean Water Act.
If the draft is left unchanged, it is generally agreed that the final rulemaking will expand the reach of the government and require more permits for activities in or near wetlands and bodies of water.
Released on May 2, the draft provides the Obama Administration’s view of when isolated wetlands, ephemeral streams, tributaries and other bodies of water should be subject to federal regulation.
Taking into account the muddled decisions of recent court cases on the subject, the guidance amends the “significant nexus” test outlined by Supreme Court Justice Anthony Kennedy in the Rapanos v. United States case by calling for aggregating “similarly situated” wetlands and water bodies within a watershed to determine whether there is a significant nexus.
An analysis by the EPA finds that the benefits of the guidance would outweigh its costs.
The guidance would increase the share of proposed jurisdictional determinations needing a permit from the Corps to 95%, up from 92% currently, representatives from the EPA and Corps told roughly 30 NAHB members at a May 18 meeting during the association’s spring board meeting in Washington, D.C.
The guidance was further discussed in a May 25 meeting between the agencies and NAHB and other national trade associations that may decide to submit comments jointly.
While the EPA and the Corps say the guidance will make Clean Water Act regulation clearer and more predictable for those seeking permits, NAHB has already identified a number of issues that the draft language raises:
- Does jurisdiction extend to low impact development stormwater devices?
- Aggregating similarly situated wetlands under a significant nexus test will likely make jurisdictional any wetland and water body not considered “isolated.”
- Bodies of water found to be a “water of the U.S.” will need to be assessed for water quality by the states where they are located and added to the state’s 303(d) list if the water quality is impaired.
- How will a builder seeking a Corps permit know if a jurisdictional determination has already been made on another wetland or body of water within the watershed — which would make federal jurisdiction much more likely under the significant nexus test?
- Are metropolitan separate storm sewer systems (MS4s) considered waters of the U.S. under the guidance?
For more information, email Glynn Rountree at NAHB, or call him at 800-368-5242 x8662.