Two ‘Final’ Environmental Rules That are Not Yet Final

On Jan. 20, the Biden administration implemented a regulatory freeze for all pending regulations. Two “final” environmental rules affecting the housing industry were swept up in this presidential action.

The first rule regards the reauthorization by the U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA) of the federal Nationwide Wetlands Permit (NWP) program for an additional five years.

The NWP is the most common federal wetlands permit (i.e., over 65,000 issued annually by the Corps) to authorize dredge or fill activities, including residential land development and construction activities impacting federally jurisdictional waterbodies (rivers, lakes, ponds, streams, wetlands, etc.)

Improvements by the Corps under the reauthorized NWPs include the removal of an existing 300-foot limit for losses to jurisdictional streambeds; however, developers and builders seeking coverage under NWPs would still need to ensure their proposed activities stayed below the NWPs existing half-acre limit for impacts to all jurisdictional features (streams, lakes, wetlands, etc.)

The final rule reauthorization for the Corps’ NWPs was published in the Federal Register on Jan. 13, 2021, and is scheduled to become effective on March 15. Importantly, land developers and builders seeking NWP federal wetlands permits during this time period spanning the delayed effective date by the Biden administration can still seek permit coverage under the existing NWPs and must comply with the 300-foot limit on impacts to jurisdictional streambeds.

The second rule states that the regulatory definition of “take” under the Migratory Bird Treaty Act (MBTA) does not apply to activities like land development or home building that results in unintentional “incidental takings” (i.e., injury or death) of an individual species of bird protected under the MBTA. The final rule was published in the Federal Register on Jan. 7, 2021 with an effective date of Feb. 8.

As a result of this presidential action, these two regulations and all other pending regulations will need to be reviewed and approved by a Biden administration official before they can move forward. Federal agencies and departments are also asked to consider postponing for 60 days the effect dates of any rules that have already been published but have not yet taken effect “for the purpose of reviewing any questions of fact, law, and policy the rules may raise.”

NAHB continues to closely the monitor the situation and will urge the Biden administration to allow these rules to go forward as written after the appropriate agencies review the policies. For more information, contact Michael Mittelholzer.