NAHB Sues Corps Over Rules for Upland Ditches
Charging that it has overstepped its authority to regulate development under the Clean Water Act, NAHB has filed a lawsuit against the U.S. Army Corps of Engineers over the new rules for the agency’s Nationwide Permit program.
The Clean Water Act authorizes regulators to issue permits to land owners when they discharge pollutants into navigable waters, such as rivers and bays, and some tributaries feeding into these bodies of water.
With Nationwide Permit 46, issued as part of the newest version of the program, the Corps has extended its reach to upland ditches. “Now, they’ve gone way too far,” said NAHB President Brian Catalde.
NAHB v. U.S. Army Corps of Engineers, filed May 24 in the U.S. District Court for the District of Columbia, seeks to rein in the agency.
“We are trying to restore some common sense to the act's huge breadth and scope,” said Catlade. “These aren’t wetlands. These aren’t ponds. These are common drainage ditches, not navigable water. There’s a price to pay for these overzealous regulations that cost builders time and money yet offer no environmental benefit. The person who pays the price is the new home buyer.”
The Clean Water Act calls ditches “point sources” and they must be regulated and subject to permits if they convey and discharge pollutants into navigable waters. “But upland ditches themselves are not ‘navigable waters,’” Catalde said. “This is why NWP 46 is illegal and must be struck.”
The suit is especially timely in light of recent guidance issued last week by the Corps and the U.S. Environmental Protection Agency in response to the year-old Rapanos v. United States decision from the Supreme Court. The agency’s new Rapanos guidance states that upland ditches are generally not regulated as navigable waters under the act.
“Regulatory inconsistency of this sort must stop,” said Catalde. “It is an abuse of power for the federal government to control ordinary ditches and storm drains that don’t emit pollutants.”
Under rules of federal court practice, the Corps has 60 days to answer NAHB's complaint.
The case is somewhat ironic, Catalde said, because NAHB has long supported the concept of Nationwide Permits, which were intended to streamline the approval process and provide relief from bureaucratic paperwork. Instead, the Corps has made each new version of the program more and more restrictive, eroding the savings intended by Congress.
“This lawsuit proves the point — the Corps wants to regulate everything, including ordinary ditches dug on dry land. We hope to preserve the integrity of the NWP program by getting a court ruling that the Corps has gone too far,” Catalde said.
For more information, e-mail Calli Schmidt at NAHB, or call her at 800-368-5242 x8132.