Wetlands

Understanding how the federal government regulates wetlands and other water areas has been a complicated and confusing issue for landowners and developers. Recent Supreme Court decisions on wetlands jurisdiction have only further exasperated the issue of which waters bodies are under federal protection and control. This section states NAIOP’s position on wetlands and provides recommendations to create a balance between conservation and economic development in the commercial real estate industry.

The
Issue

Wetlands are an important part of our environment and our ecosystem and their declining acreage is a legitimate national concern. However, the way the federal government regulates the use of these wetlands is too bureaucratic, resulting in unnecessary increased costs and delays in real estate development. In 2016, the Environmental Protection Agency (EPA) and the Army Corps (Corps) issued a new rule which would have expanded the federal government’s jurisdiction over certain types of waters, including ephemeral and intermittent streams. 

Position

NAIOP supports an approach to the federal wetlands permitting program (Section 404), that provides simplification and efficiency toward the permitting process, while protecting sensitive environmental areas. We strongly support the concept of mitigation banking, which offsets destroyed or degraded wetlands in one area with newly created, enhanced or restored wetlands elsewhere, thereby balancing the needs of developers and the environment. NAIOP opposes attempts to increase the authority of the federal government to regulate wetlands and believes that states have an inherit right to protect and regulate state waters without the federal government imposing additional regulations that often do little to protect waterways.

Status

The Army Corp of Engineers and U.S. Environmental Protection Agency have issued a final rule to clarify which waters are protected under the Clean Water Act and subject to federal permits. The rulemaking is in response to two Supreme Court Cases: SWANCC vs. U.S. Army Corps of Engineers, and Rapanos vs. United States. The U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay of the rule, temporarily nullifying the new regulation as they consider if the agencies have exceeded their authority granted under the Clean Water Act. 

Talking
Points

  • The current permitting process is onerous and too bureaucratic (give personal examples).
  • We agree that all water is ultimately connected. The reason that the definition of federal waters (Waters of the United States) is so contentious is because regulators use that basic principle as a justification for protecting waters that do not significantly affect or alter traditional navigable waterways.
  • A federal definition of "Waters of the United States" should reflect a balance between environmental protection and economic development.
  • NAIOP supports targeted changes in the Section 404 program in order to expedite routine permitting, increase flexibility in the program and to provide greater predictability in all cases.