Supreme Court To Hear Wetlands Cases Has Far-Reaching Implications for Home Building, Says NAHB

Home Builders Filed Briefs in Support of Clarity in Federal Jurisdiction

News release from the National Home Builders Association (NAHB)

October 11, 2005 - The Supreme Court today agreed to hear three cases that have far-reaching implications for home building and housing affordability, according to the National Association of Home Builders (NAHB). The cases involve the federal government’s power to regulate wetlands, and NAHB has filed amicus briefs in two of the cases to assert that manmade ditches may not be regulated under the Clean Water Act.

“By selecting Rapanos, Carabell and S.D. Warren, the Supreme Court clearly recognized the myriad wetlands issues left unresolved under the Clean Water Act,” said Dave Wilson, president of the National Association of Home Builders and a custom home builder from Ketchum, Idaho. “The court’s decision to resolve all three cases on their merits sends a positive signal that the home building industry may yet see improved clarity and predictability in the regulatory process, and Americans may see their tax dollars better spent on meaningful wetlands conservation.”

At issue in Rapanos and Carabell is the definition of “navigable waters of the United States” under the Clean Water Act, which gave the federal government the power to regulate surface waters and wetlands. A string of court decisions and inconsistent enforcement by federal agencies has made the definition of a wetland unclear and overly broad, even requiring landowners to obtain a federal permit for actions that affect a drainage ditch that they created on their own land. The wetlands permitting program, administered by the U.S. Army Corps of Engineers under Section 404 of the Act, is rife with uncertainty, cumbersome paperwork requirements and lengthy permitting delays, which drives up the cost of building a home.

In S.D. Warren, the issue is the Clean Water Act’s definition of “discharge,” which requires that pollutants be added to navigable waters before federal permitting requirements are triggered. As with “navigable waters,” the scope of the term “discharge” has led to both regulatory and judicial confusion.

“As stewards of much of the nation’s developable land, home builders have taken a lead role in protecting wetlands,” said Wilson. “But it does not make sense to put a puddle created by a truck tire during a rain storm in the same regulatory category as the Everglades. Nor does it make sense to use the Clean Water Act as a tool to regulate the mere movement of soil, when Congress only intended to regulate situations where pollutants are added to navigable waters.”

“The wetlands program’s scarce resources should be devoted to protecting the nation’s true wetlands, in keeping with Congress’s intent when it passed the Clean Water Act,” said Wilson.

The three cases are Rapanos v. United States, Carabell v. Army Corps of Engineers, and S.D. Warren Co. v. ME Board of Environmental Protection.

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