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Home builders and contractors urge clearer Clean Water Act jurisdiction, faster jurisdictional determinations
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Summary
Witnesses from the Associated General Contractors and the National Association of Home Builders told the Senate EPW committee that uncertainty over Clean Water Act jurisdiction, slow approved jurisdictional determinations and scarce mitigation credits add time and costs to housing and construction projects.
Carl Harris, chairman of the board of the National Association of Home Builders, and Leah Palconis, general counsel for the Associated General Contractors of America, told the Senate Environment and Public Works Committee that inconsistent interpretations of what counts as "waters of the United States" and long waits for approved jurisdictional determinations create substantial project uncertainty and costs.
Harris said the United States faces "a shortfall of over 1,500,000 housing units," and described how delays on jurisdictional determinations and mitigation bank shortages can add materially to home prices. "For example," he said, "a member in Ohio told us that the credits for his project cost about $140,000 due to the 2 to 1 mitigation requirement. When you break it down per home lot, this adds $10,000 to the cost of a new home." He urged prioritizing approved jurisdictional determinations (AJDs), recentering the nationwide permit so it meets the 60-day intent in statute, and encouraging creation of mitigation banks.
Palconis told senators that NEPA lawsuits can stall projects for years and that litigation increasingly is used to obstruct projects. She said Congress has already provided statutory tools such as MAP-21’s 150-day limit on legal challenges for some infrastructure projects and recommended applying consistent judicial-review timelines to critical infrastructure. Palconis also called for protecting general permits, codifying exemptions for roadside ditches and stormwater, expediting jurisdictional determinations, and ensuring mitigation requirements align with available mitigation credits.
Committee members discussed the Supreme Court's Sackett decision and its aftermath; witnesses said agency rules implementing the Court's guidance have not yet produced consistent on-the-ground clarity among Corps districts. Several senators urged statutory clarifications so landowners and developers can determine risk without relying on differing field-office interpretations.
No votes or new statutory language were advanced during the hearing; witnesses urged Congress to act to provide uniform definitions, consistent application across Corps districts, and timelier AJDs so project sponsors can proceed with greater certainty.
