NAHB NEWS:   

 

CITING REGULATORY OVERREACH, NAHB FILES CLEAN WATER ACT LAWSUIT

     WASHINGTON, June 13 - The National Association of Home Builders has filed a lawsuit against the U.S. Army Corps of Engineers over the latest iteration of the agency's Nationwide Permit program. With the new rules, the Corps has overstepped its authority to regulate development under the Clean Water Act, said NAHB.

     With Nationwide Permit 46, issued as part of the newest version of the program, the Corps has extended its reach into upland ditches.  "Now, they've gone way too far," said NAHB President Brian Catalde, a home builder from Calif.

     NAHB v. U.S. Army Corps of Engineers, filed May 24 in the U.S. District Court District of Columbia, seeks to rein in the agency.

     "We are trying to restore some common sense to the Act's huge breadth and scope.  These aren't wetlands. These aren't ponds. These are common drainage ditches, not navigable water," Catalde added. "There's a price to pay for these overzealous regulations that cost builders time and money yet offer no environmental benefit. The person who pays the price is the new home buyer."

     The Clean Water Act calls ditches "point sources."  Accordingly, ditches must be regulated and subject to permits if a particular ditch conveys and discharges pollutants into navigable waters.  "But upland ditches themselves are not 'navigable waters,' " Catalde explained. "This is why NWP 46 is illegal and must be struck."

     The Act gives regulators the authority to issue permits to land owners when they discharge pollutants, including soil or sediment from construction activity, into navigable waters like rivers and bays, and to some of the tributaries that feed into these bodies of water.

     The suit is especially timely in light of guidance issued last week by the Corps and the U.S. EPA interpreting the year-old Rapanos v. United States decision from the Supreme Court's 2006 term.  The agencies state in the Rapanos guidance that upland ditches are generally not regulated as navigable waters under the Act.       "Regulatory inconsistency of this sort must stop," said Catalde.  "It is an abuse of power for the federal government to control ordinary ditches and storm drains that don't emit pollutants."   

     Under rules of federal court practice, the Corps has 60 days to answer NAHB's complaint.

     The case is somewhat ironic, because NAHB long supported the concept of Nationwide Permits, which were intended to streamline the approval process and provide relief from bureaucratic paperwork.  Instead, the Corps has made each new version of the program increasingly restrictive, eroding savings in paperwork that Congress envisioned.

     "This lawsuit proves the point -- the Corps wants to regulate everything, including ordinary ditches on dry land.  We hope to preserve the integrity of the NWP program by getting a court ruling that the Corps has gone too far," Catalde said.