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Court Delays Defenders of Wildlife Ruling in Arizona
The U.S. 9th Circuit Court of Appeals has agreed to a joint request from the federal Environmental Protection Agency (EPA) and NAHB to delay its ruling barring the transfer of the Clean Water Act permitting program from the EPA to Arizona. The ruling gives the EPA time to appeal the court’s ruling to the Supreme Court, an action that NAHB likely will support.
At issue is whether Arizona meets the nine standards under Section 402b of the federal Clean Water Act that the EPA uses to determine whether to delegate authority to administer the program from federal to state agencies. If a state agency meets the nine standards and wants the authority to administer permitting programs, EPA must transfer the program.
The EPA determined that Arizona did meet those standards and transferred the authority to administer the program to the state, but that determination was challenged by the Defenders of Wildlife, which wanted EPA to continue to administer the program.
Defenders of Wildlife brought suit against the EPA, saying that the federal agency had not considered the needs of endangered species when it made its determination to transfer authority to Arizona. The circuit court agreed with the environmental group, a ruling that would force the EPA to again assume responsibility for issuing discharge permits in the state.
NAHB joined with EPA to request a delay of the ruling because forcing EPA to issue discharge permits in Arizona could force more delays on home builders. “The EPA at this point is not in a position to issue permits in Arizona, and that could put our members in limbo,” said Tom Ward, assistant staff vice president for litigation at NAHB. “If Congress intended that the delegating process include endangered species concerns, it could have simply added that requirement to the Clean Water Act. But it did not,” Ward added.
The decision also has a major impact on affordability for Arizona home buyers. According to the U.S. Fish and Wildlife Service, the time delays from consultations regarding the protected pygmy owl range from five to 18 months which, when added to the cost of onsite mitigation and project modifications, cost a typical development between $1.7 million and $2.7 million.
Should EPA decide to take the decision to the Supreme Court, the agency must file by September.
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