NAHB Urges Agencies to Provide Additional Guidance on WOTUS Implementation

This week, NAHB Chairman Alicia Huey issued a letter to the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) urging the agencies to provide additional guidance to its field staff and the general public on the new conforming rule for “waters of the United States” (WOTUS) to ensure clarity and action.

“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,” Chairman Huey stated, leaving Corps field staff at a loss for what actions to take in regard to approved jurisdictional determinations (AJDs).

“As we understand it, there currently are only a few decisions the 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 noted. “Each of these actions have been characterized by the Corps field staff as temporary workarounds that have been used in response to the nationwide AJD freeze following the court’s Sackett ruling. 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 404 permits … As a result, AJDs for these types of projects remain, and will likely continue to remain, in the ‘pending’ pile. This is unacceptable.”

NAHB posed the following questions regarding the scope of federal Clean Water Act (CWA) jurisdiction and when a CWA 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” waterbody 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?

For more information, visit nahb.org.