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High Court Rules for NAHB in Clean Water Permit Case
The U.S. Supreme Court ruled in favor of NAHB on June 25 in a five to four decision on consultation requirements under the Endangered Species Act.
In the case of National Association of Home Builders v. Defenders of Wildlife, the court reversed and remanded a lower court decision that required the U.S. Environmental Protection Agency to consider the protection of “listed” species before handing Clean Water Act permitting authority over to the state of Arizona. The EPA had determined that the state met all the necessary criteria for receiving that authority.
“This decision is a great one, because the U.S. Supreme Court is helping to preserve housing affordability,” said NAHB President Brian Catalde.
“Congress created the Clean Water Act to prevent, reduce and eliminate pollution,” Catalde said. “But it’s the Clean Water Act, not the Arid Desert Act. There is no logic to twisting a program designed to protect the waters of the United States to give special considerations to species that have no relation to that water.”
The Clean Water Act also calls for the states, not the federal government, to manage permitting programs when the EPA determines that nine specific criteria have been met. None of those criteria mentions protection of listed species or the Endangered Species Act.
Forcing the EPA to issue discharge permits in Arizona — which an unfavorable Supreme Court decision would have led to — would have cost builders more time and money, making homes less affordable in affected areas.
The costs associated with consultations, which are required under the Endangered Species Act, would have been prohibitive. In the case of one protected species in Arizona, the U.S. Fish and Wildlife Service estimated that consultations delayed the typical development by five to 18 months and, when added to the cost of onsite mitigation and project modifications, cost between $1.7 million and $2.7 million, Catalde pointed out.
“We all share this important responsibility to protect our endangered and threatened species. NAHB is working hard with Congress and the Administration to reform the Endangered Species Act with appropriate protections in mind,” Catalde said. “However, there is no need to mix apples and oranges by tacking on additional requirements to the ones that all parties agree Arizona has already met. The Endangered Species Act does not trump all other important environmental considerations. The Supreme Court has agreed, and we applaud their decision.”
For more information, e-mail Calli Schmidt at NAHB, or call her at 800-368-5242 x8132.
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