Environmental Rulings Affecting Residential Construction Put on Pause

Two environmental rules affecting the housing industry were paused last week as the Biden administration enacted a regulatory freeze. This freeze affected all pending regulations, and the two that affect the housing industry are the reauthorization of the Nationwide Wetlands Permit program and the regulatory definition of “take” under the Migratory Bird Treaty Act. The Nationwide Wetlands Permit is the most common wetlands permit, which authorizes the dredging or filling activities on federally jurisdictional water bodies, such as rivers, lakes, and ponds, according to the National Association of Home Builders. Read more to see how these pauses could affect residential construction.

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.

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