New wetlands rules challenged in court

Published May 1, 2000

New rules issued by the Army Corps of Engineers require permits for converting as little as one-half acre of wetland to residential or commercial use, prompting a call for Congress to act and a lawsuit filed by the National Association of Home Builders (NAHB).

“NAHB believes that with these costly, complex, and unnecessary wetlands regulations, the Corps will create serious delays for public and private sector projects across the country,” said the association. Its suit, filed in U.S. District Court for D.C., charges the new wetlands permit requirements have “no rational basis, go beyond the agency’s authority under the Clean Water Act, and will result in a bloated bureaucracy instead of the streamlined permitting process envisioned by Congress.”

The current rule, NWP 26, expires in June 2000. It allows up to three acres of wetlands to be filled without an individual permit. According to NAHB, the proposed new half-acre rule means between 40 and 60 percent of building projects that would have otherwise qualified without permits will need to go through the lengthy permitting process.

NAHB estimates that “builders can expect delays of months or even a year if they cannot avoid the small, depressional areas of essentially dry land on their sites that qualify as wetlands.”

In its effort to replace NWP 26, the Corps is adding five new types of permits, one of which will require vegetated buffers around uplands areas. In its lawsuit, NAHB asserts the Corps has gone beyond its legal authority under the Clean Water Act.

Also being challenged by NAHB is the Corps’ assertion that it can regulate mechanized land-clearing and excavation that removes materials from wetlands. The Corps has proposed changing the permitting as part of settlement it reached with the Natural Resources Defense Council (NRDC), funded in part by the U.S. Environmental Protection Agency. “This is a major victory for NRDC and the environment,” said NRDC attorney Daniel Rosenberg. Michael Davis, Deputy Assistant Secretary of the Army for Civil Works, claims the permit program changes “reflect the administration’s, including the Army’s, commitment to protecting the nation’s wetlands and reducing damages to communities from flooding.”

The proposed new permitting rules will affect not only home builders, but communities and state and local highway agencies as well. They will be required under the new rules to get permits to fill in wet areas before widening roads or maintaining storm water facilities.

Debate over the new rules may also force a much-needed discussion over the exact meaning of the term “wetlands.” Homebuilders claim the “wetlands” for which they will now need permits are “wet” less than a week each year, and even then may not be wet on the surface.

Congress may be holding hearings to investigate the Corps’ decision-making process for these new rules. Congressman Ron Packard (R-California) has called for a delay in implementing the rules until Congress has had a chance to examine the workload the new permit process will require and the Corps’ ability to handle it.