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.
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.
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.