The court’s decision sided with the amicus brief filed by NAHB in this case.
The Fifth Circuit relied heavily on the 2001 decision by the Supreme Court, Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, that Clean Water Act regulation does not extend to isolated wetlands.
But the Needham ruling directly contradicts other circuit court decisions, notably U.S. v. Deaton, in which the Fourth Circuit ruled in favor of virtually limitless jurisdiction, allowing a remote, shallow drainage ditch eight miles from the closest navigable water to be placed under federal regulation.
“What we learned from the Needham decision is that if the Deatons’ land were in Texas, their ditch would not have been regulated by the federal government,” said Conine. “Without action from the EPA, the Supreme Court is the only realistic forum that can resolve the question of jurisdiction and take landowners like the Deatons out of regulatory limbo, and we urge the justices to take the case.”
On. Dec. 15 the Environmental Protection Agency and the U.S. Army Corps of Engineers announced that they would not make rules for activities in isolated wetlands, leaving the courts, which have little expertise in environmental policy, to decide individually whether the federal government has jurisdiction and what activities might be allowed in wetlands.
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