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Rapanos Guidance Fails to End Wetlands Permit Confusion
A year and a half after the U.S. Supreme Court issued a split decision on wetlands development and federal jurisdiction under the Clean Water Act, builders, developers and regulators continue to be mired in confusing rules, delays and uncertainty.
NAHB recently provided comments on the so-called Rapanos Guidance from the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency, urging the regulators to issue a formal rulemaking.
A number of state and local home builders associations as well as individual builders also submitted comments. The deadline for submission was Jan. 21.
Intended as clarification for both builders and regulators, the guidance was supposed to specify who has authority to regulate various land development activities pertaining to “navigable waters of the United States,” where the Clean Water Act applies.
But the guidance, issued last June — a full year after the court decision — has not helped much, resulting in an ever-growing, time- and money-consuming backlog of permitting decisions in Corps offices that NAHB says poses a growing threat to housing affordability.
It also remains unclear what test or proof should be used to demonstrate that properties subject to permitting contain the “significant nexus” to wetlands and navigable waters that make them subject to federal jurisdiction in the first place.
“Longer delays and the uncertainty associated with delays increase the costs related to construction, increase the interest that must be paid on loans related to the construction, make scheduling and planning extremely difficult and postpone the date that the home can be sold to realize a return on our investment,” the NAHB comments said.
For example, Corps’ records show that in 2003 it took an average of 180 days to get a permit under Section 404 of the Clean Water Act, which governs development on wetlands where the federal government has jurisdiction. Today, some Corps district offices are reporting that it can take as long as 12 months for a response to a permit application.
The applications themselves are also confusing, with sections that need to be completed even if they are not applicable to the site, undefined terms and vague data requests.
Particularly vague is the test for a significant nexus, and in its comments NAHB suggested how to fix the problem.
The federal agencies should “focus not only on the frequency, volume and duration of water flow, but also on evidence of downstream effects as the primary factor in determining significant nexus.
“Consideration of drainage area, base flow index and minimum annual flow could also help to direct decision-making, but these factors must be quantified so that the end result is an objective score, not a subjective opinion,” the comments said.
NAHB submitted the following recommendations:
- The agencies must complete a rulemaking that clearly delineates the limits of federal jurisdiction under the Clean Water Act’s Section 404 permitting program, as articulated by the U.S. Supreme Court.
- The agencies must limit jurisdiction to those areas that meet the “traditionally interstate navigable waters,” “relatively permanent water,” “continuous surface connection” or significant nexus tests.
- The agencies must revise and reissue the Rapanos guidance, incorporating all reasonable suggestions made during the comment period that simplify the jurisdictional determination forms; streamline the process; help document permitting decisions; and make the process more consistent, transparent and less burdensome.
- The agencies must at the same time make the “significant nexus” determination easier to implement, quantifiable, based on science, transparent and consistent across the nation.
- The agencies must provide a mechanism by which applicants may voluntarily allow jurisdiction in lieu of completing the jurisdictional determination form.
- The agencies must also clarify the definition of “traditional navigable waters,” according to the Supreme Court’s view that they are either actually navigable or that they are “a continued highway over which commerce is or may be carried on with other states or foreign countries.”
For more information, e-mail Calli Schmidt at NAHB, or call her at 800-368-5242 x8132.
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