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Supreme Court Asked to Hear Arizona Clean Water Case
NAHB has asked the U.S. Supreme Court to rule in a case involving transferring the Clean Water Act Section 402 permit program from the federal government to the state of Arizona.
At issue is whether Arizona meets the nine standards under Section 402b of the federal Clean Water Act that the U.S. Environmental Protection Agency (EPA) uses to determine whether to delegate administrative authority for the permitting program to state agencies. If the standards are met and a state agency wants the authority, EPA must transfer the program.
After determining that Arizona did meet those standards, EPA transferred the permitting authority to the state. The Defenders of Wildlife then sued EPA for not considering the needs of endangered species when it made its decision. The U.S. 9th Circuit Court of Appeals agreed with the environmental group, making the EPA responsible for issuing discharge permits in Arizona.
In June, the circuit court agreed to a joint request from EPA and NAHB to delay its ruling so that they could consider submitting a writ of certiori asking the Supreme Course to take up the case.
The question, according to NAHB environmental and legal experts, is whether a court can supplement the nine criteria for state permitting authority with requirements of the federal Endangered Species Act (ESA).
Because the case raises significant questions on the connection between the Clean Water Act and ESA, NAHB is hopeful that EPA, the Department of Interior and the Department of Justice also will ask the Supreme Court to hear the case. If EPA does so, “the chances that the court will take the case increase exponentially,” said Duane Desiderio, NAHB’s staff vice president for litigation.
Forcing EPA to issue discharge permits in Arizona could result in more delays for home builders in the state. "The EPA at this point is not in a position to issue permits in Arizona, and that could put our members in limbo," said Desiderio.
"If Congress wants the delegation process to include endangered species concerns, it could amend the Clean Water Act. But it has not," Desiderio 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 on the protected pygmy owl range from five to 18 months. When added to the cost of onsite mitigation and project modifications, this adds between $1.7 million and $2.7 million to the cost of a typical residential development.
EPA has until the end of this month to file. “We are very hopeful that they will,” Desiderio said.
For more information, e-mail Calli Schmidt at NAHB, or call her at 800-368-5242 x8132.
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