November 14, 2011
Nation's Building News

The Official Online Weekly Newspaper of NAHB

EPA, Corps of Engineers to Begin Rulemaking on Clean Water Act Wetlands Jurisdiction

The Environmental Protection Agency and the U.S. Army Corps of Engineers will undertake a rulemaking to clarify the limits of federal regulatory jurisdiction over wetlands under the Clean Water Act (CWA), the U.S. Senate Environment and Public Works (EPW) Committee said on Nov. 3.

In May, the agencies published controversial draft guidance — “Identifying Waters Protected by the Clean Water Act” — representing the Obama Administration’s response to Supreme Court decisions in 2001 and 2006 limiting federal CWA permitting authority over “isolated wetlands” and bodies of water without a “significant nexus" to traditional navigable waters such as lakes, rivers or harbors.

The agencies said they expected their guidance to dramatically increase the number of” isolated wetlands,” “ephemeral streams” and “other waters” (a term that has not been defined) that would require federal wetlands permits.

Along with other industry stakeholders, NAHB had urged the agencies to withdraw the guidance and undertake a formal rulemaking instead.

It remains unclear when the rulemaking will begin, and there are concerns that the process will be used to simply codify what was presented in the draft guidance.

An EPA spokeswoman said recently that the agency was still working on both the guidance and on proposing a rule.

NAHB, other trade associations and Sen. James Inhofe (R-Okla.), ranking member of the EPW Committee, have called on the EPA and the Corps to begin the formal rulemaking with a fresh slate in clarifying the meaning of “waters of the U.S.”

There has been no response from the agencies to those requests.

On Oct. 12, along with representatives from the American Farm Bureau Federation, the Association of General Contractors and the International Council of Shopping Centers, NAHB members Bobby Bowling, Tom Farsay and Jerry Passman met with officials from the EPA, the Corps, Office of Management and Budget and the U.S. Small Business Administration to discuss the impact the wetlands guidance would have on small businesses.

Among the concerns cited at the meeting:

  • The draft guidance would vastly extend the regulatory reach of the U.S. government over most bodies of water.

  • Under the draft guidance, in addition to Section 402 stormwater permits, Section 404 permits would be needed to install or maintain some “low impact development” (LID) measures to control stormwater.

  • For the first time, Section 404 permits would be required for many common farm ponds and other impounded waters,

Attendees were given two weeks to provide written comments on issues raised during the meeting.

NAHB provided comments on the draft wetlands guidance on Aug. 1.

For more information, email Glynn Rountree at NAHB, or call him at 800-368-5242 x8662.

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