WEST HOUSTON ASSOCIATION
Memorial City Plaza II
820 Gessner Suite 1310
Houston, Texas 77024
v 713 461 9378
f 713 461 3065
West Houston Association Issues
Wetlands & US Waters
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NEW Congress Poised to Address Wetlands Jurisdiction The Senate Environment and Public Works Committee is working with environmental groups, state organizations and industry interests to clarify federal jurisdiction over isolated wetlands. The issue has been controversial for many years with the Supreme Court issuing decisions on wetlands that have provided more confusion than certainty to both those seeking permits and regulators. Senator Russ Feingold (D-Wis.) recently introduced legislation that would amend the Clean Water Act to expand federal jurisdiction of wetlands. The bill, the Clean Water Restoration Act (S. 787), is similar to legislation that was introduced in previous years and would replace the term “navigable waters” with the term “waters of the United States” as the trigger for federal jurisdiction. Proponents of this legislation believe the change is needed to strengthen the original intent of the Clean Water Act and will increase protections for the nation’s rivers, streams and wetlands. However, others believe that the legislation is ultimately a power grab by the federal government, infringing on state’s rights at the expense of landowners, who will be required to apply for permits for literally all wet areas. These areas include: intermittent streams, mudflats, sandflats, sloughs, prairie potholes, wet meadows and man-made ditches. The Senate is likely to mark-up the legislation sometime in May, while a specific timeframe has not been announced by the House. Chairman of the House Transportation and Infrastructure Committee, James Oberstar (D-Minn.) is a strong supporter of this legislation and introduced an almost identical version last Congress. He has held several hearings on this topic. While NAIOP agrees that Congress should offer a legislative fix to clarify federal jurisdiction over wetlands, we believe that isolated man-made ditches from construction sites should not be treated as actual wetlands. Permits for these ditches can have severe costs for developers, while providing little, if any, environmental protection. A balanced approach towards wetlands permitting is needed to protect the integrity of our nation’s wetlands. This approach also needs to clarify that not every wet area in the United States should warrant a permit from the federal government.
US EPA & Corps Leave Existing Guidance In Place EPA and the Corps of Engineers have determined not to alter current federal regulations or definitions of wetlands. This apparently leaves stating existing guidance to Corp Districts resulting from a ruling by the Supreme Court that water fowl migration can not be used to establish jurisdiction over wetlands that are not navigable. The EPA had been seeking comments that would have led to rulemaking changes in light of the US Supreme Court ruling in the Solid Waste Agency of Northern of Cook County v. US Army Corps of Engineers (SWANCC). Comments are being sought on the definition of "waters of the United States" a common phrase used in the Clean Water Act.
West Houston Association Calls for Clear Definition of "Adjacent" waters Following is the text of a letter prepared by our Environment Committee and submitted to the Corps responding to the definition of "waters of the US": "The West Houston Association submits the following comments in response to the Advance Notice of Proposed Rulemaking on the definition of “waters of the United States”. Since 1979 the Association, a nonprofit group organized to promote responsible growth with acceptable infrastructure has actively participated at all levels of government that have regulatory and statutory authority over environments around the Houston/Galveston Gulf Coast. We are proud of the record our developer members have established with the Galveston District, one of the fastest growing regions of the United States. Our membership consists of a significant number of landowners and others within the category of “potentially regulated entities.” Past experience with the Corp’s 404 permit program and wetland delineations in the Corp’s Galveston District indicates to us that a precise definition of “waters of the United States” be developed. The regulated community in this geographic area has seen a wide variety of areas determined to be wetlands such as portions of abandoned rice fields (isolated wetlands) as well as wetlands that clearly meet the criteria in the 1987 wetlands manual. “Marginal” wetland determinations or those which barely meet the wetlands criteria are difficult to accept by private sector. Because of this the SWANCC opinion was very much welcomed in this community. Currently, the Galveston District is using a concept of “adjacent wetland” which includes areas which meet or marginally meet wetland criteria as long as these areas are located within the 100-year floodplain of a creek, bayou, stream or river. Typically, many floodplains in this area are large in size such that “marginal” wetlands many thousands of feet from a stream can still be determined to be “adjacent” to the stream. We urge the Corps of Engineers to develop a concept of “adjacent” that is closer to the ordinary meaning of adjacent which is “lying near or adjoining”. This meaning is identical to that ascribed to it by the government when the Riverside Bay View Homes case was being argued before the Supreme Court. A review of the court’s question and answer session of that case clearly indicated the government specifically addressed “adjacency” because a member of the court asked the question “What is an adjacent wetland?” The government’s answer indicates that an adjacent wetland was a wetland that “lies immediately next to or abuts a navigable water. This is a definition the regulated community can accept and depend upon for fairness. The CWA refers to navigable waters and wetlands adjacent thereto (our emphasis). We believe the ordinary language definition of adjacent is the correct one and should become part of the Corps definition of Waters of the U.S." Legislation Introduced to Recapture Clean Water Act Jurisdiction On July 25, 2002, Senator Feingold and Congressmen Dingle and Oberstar introduced legislation into the Senate and House respectively to protect isolated wetlands now in jeopardy as a result of a 2001 Supreme Court decision-Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (SWANCC). The bills, which will be called The Clean Water Authority Restoration Act of 2002, were introduced to restore the protection that existed for all waters and wetlands prior to the SWANCC decision by: 1) Adopting a statutory definition of "waters of the United States" based on a longstanding definition of waters in the Corps of Engineers' regulations (at 33 CFR 328.3). 2) Deleting the term "navigable" from the Act to clarify that Congress' primary concern in 1972 was to protect the nation's waters from pollution, rather than just sustain the navigability of waterways. 3) Including a set of findings that explain the factual basis for Congressional assertion of constitutional authority over waters and wetlands, including those that are called "isolated." The bills will be posted to http://thomas.loc.gov In the House the bill will be H.R. 5194. Additional information is available at http://www.naiop.org/membercenter/government/wetlands.shtml
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Role
of Houston's U.S. Waters & Wetlands Working Group
Builds a working relationship between Corps of Engineers and the development community in the Greater Houston area. The Group is composed of representatives from the following development organizations. |
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