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Texas Association of Builders
January/February 2016
Wetlands and the "Waters of the U.S."
T
he Clean Water Act gives the federal
government jurisdiction over the
nation's navigable waters, or “waters
of the U.S.” The act prohibits the
discharge of dredged and fill material into
waters of the U.S., including wetlands near
these waters, without a federal permit.
The Army Corps of Engineers administers
the permitting program with EPA oversight.
The Corps looks at indicators of vegetation,
soils and hydrology for a site to be considered
a jurisdictional wetland.
However, growing confusion and a series
of court cases forced EPA and the Corps
to reconsider their definition of “waters
of the U.S.,” and in fact, expand it. On
Aug. 28, 2015, a rule describing the new
definition takes effect. The rule includes
changes that could significantly expand
federal jurisdiction, triggering additional
expensive and time-consuming permitting
and regulatory requirements.
Why It Matters
NAHB members are deeply concerned
about the new definition of “waters of
the U.S.” because it puts additional, wide
swaths of land under federal jurisdiction,
including isolated wetlands, streams that
only flow after it rains, and many ditches
that the government now considers integral
to the health of the country’s waterways.
While many wetlands and streams are
an important part of the ecosystem and
should be protected, the new definition
represents federal overreach of the worst
kind: more permits, more regulation
and more costs without a corresponding
environmental benefit. The new “waters
of the U.S.” definition means, for example,
that a builder in Arizona would have to get
a permit for an activity in a dry desert wash
that could be 30 miles from the nearest
river. Such intrusive federal encroachment
is bad governance and will inevitably lead
to bureaucratic delays, increased project
costs and mitigation fees, and ultimately,
decreased housing affordability.
NAHB has been involved in trying to shape
the new “waters of the U.S.” definition since
they were first proposed in April 2014. NAHB
submitted extensive comments, urging the
agencies to withdraw the rule and suggesting
that, as a political and not scientific decision,
Congress is better equipped to determine
which areas should be affected by federal
statute. NAHB also sought significant changes
to make the proposal more understandable
and workable in the field.
NAHB continues to successfully engage
legislators on this rule. With bipartisan
support, the House approved H.R. 1732,
the Regulatory Integrity Protection Act,
which would require EPA and the Corps
to withdraw their rule and develop a new
plan to safeguard America’s waterways in
consultationwith state and local governments
and other affected stakeholders, including
small businesses. NAHB is also urging the
Senate to pass companion legislation, S. 1140,
the Federal Water Quality Protection Act.
Now that the rule is finalized, NAHB
has filed suit to have it overturned, and
in the meantime, asked for a delay in
implementation. Meanwhile, the U.S. Court
of Appeals enacted a nationwide stay on
the act pending resolution of the conflict.
As required by law, EPA failed to consult
with state and local governments, confer
with business stakeholders, comply with the
requirements of the Regulatory Flexibility Act
or produce an accurate cost-benefit analysis.
In its ruling, the Sixth Circuit stated: “A
stay temporarily silences the whirlwind of
confusion that springs from uncertainty
about the requirements of the new Rule
and whether they will survive legal testing.
A stay honors the policy of cooperative
federalism that informs the CleanWater Act
and must attend the shared responsibility
for safeguarding the nation’s waters.”
“Our members want to protect the nation’s
waters, but we need clear rules,” said NAHB
Chairman Tom Woods. “[The] court
decision is a step in the right direction.”
By National Association of Home Builders