|
Clean Water Permit Confusion Stalling Building Projects
After watching builders endure almost four months of federal inaction following the June Rapanos and Carabell decisions by the U.S. Supreme Court, NAHB is pressing the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers to make good on their commitment to provide regulatory guidance on which waters are under federal jurisdiction under the Clean Water Act and to come up a new regulatory rule in response to the court's ruling.
After the justices directed the agencies to identify where they did have jurisdiction under the Clean Water Act and provide consistent policy, the Corps told its district offices that it would be providing this guidance by late July. As of early October, no guidance had been provided.
Home builders and developers are receiving conflicting advice from regulators, with some offices refusing to grant permits until the guidance is announced, stalling building projects that might otherwise be approved.
“Due to the difficulties in the current permitting process caused by the lack of consistency in the determination of the limits of the Corps’s jurisdiction, our members have a keen interest in the development of immediate, interim guidance and formal guidance promulgated via a rulemaking, to make the permitting process operate more smoothly,” said NAHB Executive Vice President and CEO Jerry Howard in letters to John Paul Woodley, Jr., assistant secretary of the Army, and Stephen Johnson, administrator of the EPA.
“Given the opinion that the Corps cannot assert jurisdiction solely on the basis that water might flow into a traditional navigable water, immediate guidance is clearly needed so that field staff can apply a consistent policy when making jurisdictional determinations,” the letters said.
The letters also called on Corps officials to continue to issue permits in cases where they have clear jurisdiction, as a July 5 memo from headquarters to district offices instructed them. Since early summer, however, officials have stopped issuing permits in these cases while awaiting guidance.
“Permittees should be given the choice of waiting for the guidance or acquiescing to jurisdiction now, with the understanding that it may be reconsidered if it is too aggressive under the guidance ultimately adopted. Such an approach is necessary for the regulated community so that their projects may move forward, as well as for the Corps’ permit writers, to ensure there is no unmanageable backlog in jurisdictional and permitting decisions,” Howard wrote.
In his letters, Howard said that the current state of confusion is comparable to the situation faced by builders and developers following a 2001 Supreme Court decision favoring the Solid Waste Authority of Northern Cook County (SWANCC) in its lawsuit against the Corps. Despite the court’s decision that the Corps’ authority did not extend to isolated wetlands, regulators continued to assert jurisdiction in some cases, leading NAHB members ”to experience a tremendous amount of delay and confusion while attempting to determine whether or not their proposed activities are even subject to the [Clean Water Act] Section 404 permitting process,” the letters said.
“NAHB strongly supports joint agency efforts to develop both immediate interim guidance and a rulemaking to clarify the agencies’ scope of jurisdiction after Rapanos and SWANCC,” Howard told the two agencies.
For more information, e-mail Calli Schmidt at NAHB, or call her at 800-368-5242 x8132.
|
