NAHB chairman Alicia Huey submitted a letter to the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers urging both agencies to provide additional guidance to its field staff and the general public on the new conforming rule for the “waters of the United States” (WOTUS).
In August, the EPA issued a new final rule that amended parts that were determined invalid as a result of the Supreme Court’s recent decision in Sackett v. EPA.
At the time, the NAHB expressed that the amended rule still represented a challenge to housing affordability, stating the lack of clarity of certain definitions could result in “continued federal overreach, bureaucratic delays during the wetlands permitting process, and continued regulatory confusion” for builders.
“While we appreciate the agencies’ issuance of a conforming rule to address the Supreme Court’s ruling in Sackett v. EPA and hosting public webinars to explain the rule’s implementation, a number of uncertainties remain,” Huey wrote in the letter.
According to the NAHB, since the effective date of the new rule, the association has asked environmental consultants about the status of approved jurisdictional determination (AJD) requests. Instead of issuing AJDs under the new rules, the NAHB said Corps field staff communicated that they are waiting for further guidance on how to interpret and implement the conforming rule.
“As we understand it, there currently are only a few decisions that Corps field staff are comfortable making—preliminary jurisdictional determinations, delineation concurrence letters, no permit required letters, and AJDs for dry land and categorically excluded waters,” Huey wrote. “Unfortunately, none of these options apply to most of the activities conducted by landowners, home builders, industries, states, or local governments who request AJDs before seeking required Clean Water Act (CWA) Section 404 permits.”
Huey wrote there still remains a lack of clarity on what constitutes “relatively permanent” water bodies or “continuous surface connections.” As a result, AJDs for these types of projects remain pending, which she wrote is “unacceptable.”
The NAHB posed the following questions to the EPA and Corps in regard to the scope of the federal CWA and when a CWA Section 404 permit is required:
- How and when do the agencies intend to educate and empower their field staff across all Corps Districts to make consistent and defensible decisions that are consistent with the Sackett ruling, including in those states that are subject to the preliminary injunction?
- How and when will that same information that is used to educate the field staff be shared with the public?
- How will the agencies direct their field staff to interpret the term “relatively permanent” and what supporting data will be required to demonstrate that a feature meets this definition?
- How will the agencies direct their field staff to interpret the term “continuous surface connection,” and what supporting data will be required to demonstrate that a feature meets this definition?
- How and when will the interpretive guidance regarding “relatively permanent” and “continuous surface connection” be shared with the public?