To say the National Association of Home Builders is not happy with the new regulations concerning development in wetlands is, well, it's an understatement. It is so unhappy that it is suing the U.S. Army Corps of Engineers in federal district court.

The new rules will have a profoundly negative effect on the ability to develop land and build homes in a reasonable time frame, NAHB President Robert Mitchell charges.

"As a result of this ill-advised decision by the Corps, 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."

What is at issue here are the expedited nationwide permits issued by the Corps concerning activities that have only minimal adverse impact on wetlands, which builders typically encounter as small pockets or depressions in the soil that are scattered throughout a development site.

The Congressionally mandated permits are intended to strike a fair balance between economic and environmental interests. Generally, any landowner who wants to fill in or discharge into a wetland must first obtain a permit from the Corps.

Since NWPs were first introduced in 1977, they have gone through several metamorphoses. The current revision, NWP 26, allows fills up to three acres in isolated waters or above the headwaters of a stream or river. Admittedly, it has been the most useful wetlands permit to builders, and as a result, it also have been the most controversial.

Environmental groups have claimed that NWP 26 gave builders blanket approval to destroy thousands of acres of wetlands. But the NAHB says that's just not so. For one thing, the wetlands typically covered under NWP are not true aquatic sites. And for another, the permit was granted only when there were minimal impacts on the environment.

But now the Corps wants to phase out NWP26, replacing it with different permits covering five specific categories. The one the NAHB is most worried about is the proposed NWP 39, which allows fills of only one-half acre and would require owners to notify the Corps 75 days in advance of their intention to fill in anything over a 10th of an acre.

And in response, it has filed suit, claiming that so many conditions and restrictions are being attached to the nationwide permits that the program is no longer efficient. The new regs are "so complex that (the Corps) has essentially made the concept of streamlined permitting process virtually extinct," the NAHB charges.

Said Mitchell: "Builders are committed to protecting environmentally sensitive wetlands ecosystems. But we must have a streamlined permitting process for areas that are not true wetlands. These permits do not help us achieve either goal."

In its the best case, the new half-acre restriction will test the Corps' ability to manage its wetlands regulatory authority, the NAHB says. But at worst, the Corp's 39 district offices can be expected to be buried under an avalanche of paper work.

On average, it takes a year for land owners who do not qualify for a nationwide permit to obtain an individual permit to fill wetland, it explains. If the availability of NWPs are curtailed, the Corps will have to review far more projects with the same amount of staff.

Published: March 24, 2000

Use of this article without permission is a violation of federal copyright laws.