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Supreme Court Hears NAHB Clean Water Permit Arguments
 After a protracted battle through the lower courts, NAHB v. The Defenders of Wildlife reached the U.S. Supreme Court last week and oral arguments were heard on Tuesday, April 17.
At issue is whether the federal government needs to consider the Endangered Species Act before transferring permitting authority to the states under the Clean Water Act. Both NAHB and the U.S. Environmental Protection Agency say it doesn’t.
The Clean Water Act sets out nine requirements that states must meet for the EPA to transfer permit authority. Adding ESA requirements would be the same as adding a 10th criteria, and that’s not part of the Clean Water Act, NAHB and EPA argue.
Additionally, endangered species are protected because the U.S. Fish and Wildlife Service can review draft permits before states issue them to developers. It’s not appropriate to deny states the authority to oversee the permitting process as long as individual permits are subject to review, they argue.
During oral arguments, the NAHB case was presented by EPA Deputy Solicitor General Edwin S. Kneedler, whose lawsuit against the Defenders of Wildlife was considered at the same time as NAHB’s. The environmental group had sued the EPA in 2002 when the federal agency transferred Clean Water Act permitting authority to the state of Arizona.
“EPA's regulations require that a state furnish its draft permits to the public, but also specifically to the federal wildlife agencies,” Kneedler told the court. “That gives the Fish and Wildlife Service an opportunity to comment about endangered species concerns that may be raised by the draft permit,” he said.
The federal agency also has authority to approve state water quality standards, and consults with the agencies charged with protecting species before approval is granted, Kneedler said.
Justices also questioned whether the federal government is required to transfer permitting authority when states meet the criteria. Because the Clean Water Act says EPA “shall” and not “may” transfer, NAHB and EPA argue that the agency has no choice in the matter.
Chief Justice John Roberts pointed out that species would remain protected because of the permit review process. “The point is that it's the issuance of a permit under the program . . . It is not the administration of the program. And EPA has in place the procedures to allow them to review the particular permits, which is what might jeopardize an endangered species. And they don't need to leverage their … non-discretionary authority to approve a transfer, to have that authority to review the actual act that might jeopardize an endangered species,” he said.
The Defenders of Wildlife argued that ESA consultation does not add criteria, but should be considered part of the original nine criteria. “It’s an effort . . . to reconcile two obligations, both of which Congress felt were important” when they created the Endangered Species and Clean Water acts, said attorney Eric R. Glitzenstein. “I think the government's position is, oh, we're trying to elevate the Endangered Species Act to some exalted status, and in fact all we're saying on this administrative record is that's the same status that they accorded to other cross-cutting legal obligations,” he said.
But Justice Stephen Breyer raised the issue of how a ruling might affect other federal laws and regulations, and he brought up the hypothetical case of a $500 tax refund from the Internal Revenue Service. “If . . . the person who gets it is going to use the $500 to destroy the last salamander in the world, …. does the act apply to the IRS? I would have thought the answer's no,” he said.
He also questioned whether the Defenders of Wildlife needed to establish that the state of Arizona does not adequately protect endangered species. “I read through this record . . . and I couldn't find a single thing that would suggest that Arizona presents any risk to you. And so, what is the risk to an endangered species that you're actually worried about there? . . .You have to show some reason why we don't trust Arizona to do what the federal government's doing,” he said.
Justice Anton Scalia agreed. “You have to establish jeopardy. And the mere fact that you're giving it to a state which Congress has been willing to trust with implementing this law is not enough to show that there's jeopardy. Prima facie, we would expect Arizona to do the right thing.”
The court is expected to hand down a decision by June.
For more information, e-mail Calli Schmidt at NAHB, or call her at 800-368-5242 x8132.
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