|
High Court Clean Water Act Ruling Puts EPA on Thin Ice
A unanimous Supreme Court ruling last week that water passing through a dam is subject to state regulation under the Clean Water Act drew praise from environmentalists and NAHB alike.
In S.D. Warren Co. v. the Maine Board of Environmental Protection, the justices reasoned that even if water flowing through a dam is not in itself a pollutant, the temperature of the water has been changed by the dam, with repercussions for fish and plants.
In reaching its decision, the court touched upon issues that are pertinent to NAHB efforts to attain clarity and consistency in federal regulations on storm water and wetlands permits at a time when the U.S. Environmental Protection Agency has been attempting to exceed its authority under the Clean Water Act, according to Duane Desiderio, the association’s staff vice president for legal affairs. And the decision, he said, “confirms that NAHB has been on the right path all along, and that the EPA is skating on thin ice.”
Of importance to builders, he said, is the court’s discussion of the meaning of the word “discharge” in Sections 401, 402 and 404 of the Clean Water Act.
Whenever there is a potential for a discharge into navigable U.S. waters from development for which any federal permit is needed, then Section 401 requires the developer to obtain a water quality certification from the appropriate state agency. However, said Desiderio, the court also made it very clear that that the potential for a discharge alone does not require a permit under Section 402, which applies to storm water, and Section 404, which covers wetlands.
Under Section 402, the court said that the “triggering statutory term…is not the word ‘discharge’ alone, but ‘discharge of a pollutant,’ a phrase made narrower by its specific definition requiring an ‘addition’ of a pollutant to the water.” That means, Desiderio said, that the EPA and other federal agencies cannot require a permit simply because there is the potential for the addition of dirt, sediment or other pollutants to navigable waters.
The decision in the S.D. Warren case, he said, seems to support NAHB’s contention that builders don’t need a permit as long as the dirt remains onsite.
As for Section 404, “It has been NAHB’s position that if a developer is moving soil around in a wetland but is not actually adding any sediment to that property, no permit should be necessary,” Desiderio said. “That was the basis of the Tulloch argument back in the late 1990s. The court confirmed that position.”
The Supreme Court is now getting ready to consider two lawsuits — Rapanos and Carabell — that should provide additional clarification on the Clean Water Act, specifically on what constitutes “navigable water” as opposed to a “point source.” Regulatory agencies have tended to overstep their bounds in interpreting that distinction as well, Desiderio said.
“NAHB continues to play an advocacy role for tomorrow’s home owners,” he said. “Overreaching regulations have not made our country cleaner or environmentally safer, but their cumulative effect has distressing ramifications for affordability. The Supreme Court’s decision backs up our efforts, and we applaud it.”
For more information, e-mail Tom Ward at NAHB, or call him at 800-368-5242 x8230.
|
