NATION'S BUILDING NEWS: Mon., Jan. 8, 2007
Supreme Court to Hear NAHB Case on Clean Water Permits
The U.S. Supreme Court has decided to hear NAHB v. Defenders of Wildlife , reviewing a lower court ruling that would add new requirements for states that want to administer Clean Water Act permitting programs — and result in additional expenses that would be passed on to home buyers.
The court's decision is great news for NAHB members, said NAHB President David Pressly. “We are advocates for home buyers,” he said. “We need to do what we can to avoid repetitive, unnecessary regulations.”
The issue centers on the transfer of the Clean Water Act permitting program from federal regulators to the state of Arizona. The Defenders of Wildlife say that the Environmental Protection Agency (EPA) did not consider the needs of endangered species before it decided to transfer authority to the state.
The lawsuit also opens the door to adding Endangered Species Act considerations any time the federal government transfers administrative authority to a state — not just for Clean Water Act permits, but for other programs and permits as well. The case represents a milestone for NAHB, Pressly noted. NAHB has played an important role in other regulatory cases by submitting friend of the court briefs, but this lawsuit marks the first time that the association has been named as a petitioner. The court will hear oral arguments in April.
The association was joined in the suit by the Home Builders Association of Central Arizona and the Southern Arizona Home Builders Association. The EPA also filed suit, and the Court consolidated both actions.
“The determination of this case will be the lynchpin of whether we continue to produce affordable housing. I mean that. If this case isn't decided the right way, our builders will be forced to raise prices, and we can't allow that to happen,” said SAHBA Executive Office Edward Taczanowsky.
Currently, consultations are required if the affected land is considered “critical habitat” or if there are endangered or protected species living there. This new requirement imposed by the lower court would require consultation even where there are no endangered species on the site.
According to an economic impact study by the U.S. Fish and Wildlife Service, the time delays from consultations in the case of the pygmy owl ranged from five to 18 months. When added to the cost of onsite mitigation and project modifications, this added between $1.7 million and $2.7 million to the cost of a typical development in Arizona.
EPA and NAHB both agree that the federal agency didn't consider endangered species when it decided to transfer permitting authority to the state, nor was it supposed to under the law. The Clean Water Act requires the EPA to allow states to take over permitting authority if they meet nine standards; consideration of the Endangered Species Act is not among them.
“This has nothing to do with whether it's important to protect endangered species. Of course it is,” said Pressly. “But it is not part of the Clean Water Act. Congress never intended it to be so.
It's also just not logical to use a program designed to protect the waters of the United States to give special considerations to the pima pineapple cactus, a desert plant, and the pygmy owl, which is no longer listed as an endangered species. As Justice Antonin Scalia said about using the Clean Water Act to protect drainage ditches, this extends the reach of the act beyond parody.”