Wetlands

Resolved that NAHB urge the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the Corps):

1. To adopt regulations, guidance and policies asserting that “navigability” is the guiding factor to determine the geographic reach of the Clean Water Act (CWA), consistent with congressional intent.
2. To adopt regulations, guidance and policies asserting CWA authority only over activities that “discharge” or “add” materials to jurisdictional waters.
3. Provide the public with an opportunity to comment on a set of clear regulations, regulatory guidance, and policies that can be uniformly applied across all Corps districts, including clarifying the meaning of the terms “relatively permanent,” “continuous surface connection,” and “adjacent” wetland to determine the extent of CWA jurisdiction.

Further resolved that NAHB urge EPA and the Corps to include the following in their regulatory requirements for Sec. 404 of the Clean Water Act, on a regional and national basis:

1. Provide to Congress an annual report summarizing, by Division and District, the number of approved general permits, approved Individual Permits, issued approved jurisdictional determinations (AJDs) and preliminary jurisdictional determinations (PJDs), backlogged permits (general and individual) and backlogged AJDs and PJDs, as well as average times to issue AJDs, PJDs, individual and general permits.
2. Revise current procedures to provide a streamlined, cost-effective, timely, and efficient process for obtaining jurisdictional determinations - AJDs and PJDs, general permits, such as nationwide, regional, and programmatic, and individual permits for residential and commercial development and construction activities.Approve or deny with prejudice all applications within a reasonable and uniformly applied time period (targeted to be 60 days) of the completeness determination. The expiration of the above described time period without a decision on a complete application will result in the affirmative approval of the permit.
3. In accordance with Sackett, respond to all requests (e.g., standalone and those associated with a requested permit) for AJDs in a timely manner (e.g., within 60 days), recognize the Corps’ determinations (i.e., jurisdictional and non-jurisdictional) contained within AJDs are final agency actions upon which CWA permits can be issued for five years unless, (A) an applicant requests a new AJD, or (B) conditions on the ground change.
4. Issue a completeness determination within a reasonable and uniformly applied time period (targeted to be 60 days) of submitting all permit applications. If a permit application is incomplete, the Corps will provide the applicant with a detailed list of the items needed to complete the application. The Corps must issue a completeness determination within a reasonable and uniformly applied time period (targeted to be 60 days) of the applicant supplying the additional information. If a completeness determination is not issued within the described time period, it will be determined that the application is complete.
5. Approve or deny with prejudice all applications within a reasonable and uniformly applied time period (targeted to be 60 days) of the completeness determination. The expiration of the aforementioned time period without a decision on a complete application will result in the affirmative approval of the permit.
6. Allow permit applicants to waive the above time requirements or grant a one-time 60-day extension.
7. Provide a publicly viewable tracking status for project applicants to track where their permit or AJD is in line to obtain real-time status updates.
8. Provide expedited approval of mitigation banks, in-lieu fee programs and project-sponsor mitigation projects.

Further resolved that NAHB urge Congress:

1. To support legislative efforts maintaining the statutory intent of the CWA is that “navigability” be the guiding factor in jurisdictional decisions.
2. To support legislative efforts clarifying continuous surface connection means continuous surface hydrological connection.
3. To support legislative efforts maintaining that the statutory intent of the CWA is to grant jurisdiction over only those activities that result in additions of pollutants into “waters of the U.S.”
4. To support legislative efforts to require the Agencies to revert to the use of the 1987 Corps Wetland Delineation Manual and to ensure that any changes to the manual go through the rulemaking process before being adopted.

Further resolved that NAHB urge state and local governments, which may be considering whether to adopt additional wetlands protection policies or permitting programs, do so only after identifying those categories of wetlands or waterbodies not already regulated under the CWA and take into account their effect on the state’s economy and the development industry;

Further resolved that NAHB urge the Corps and EPA to adopt reasonable compensatory mitigation banking programs that will be applied consistently and provide other options, such as in-lieu fee programs as a viable compensatory mitigation option, streamline the mitigation bank approval process, and update (Regulatory In lieu fee and Bank Information Tracking System) RIBITS in real-time; and

Further resolved that NAHB urge the Corps and EPA to ensure that relevant programs triggered by Sec. 404, such as the National Historic Preservation Act and the Endangered Species Act, are streamlined and have a straightforward procedure and enforceable timeline for coordination and consultation with federal, state and local officials.

Resolution originally adopted: 2024.2, Resolution No.2

Committees with primary jurisdiction:

• Environmental Issues Committee