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Supreme Court Rules Against Excessive Regulation
In a step forward for affordable housing and the battle against excessive regulation, the U.S. Supreme Court on Monday remanded to the lower courts a decision on whether wetlands connected to actual navigable waters by ditches or drains can be regulated under the Clean Water Act.
In a plurality decision, the court reversed and remanded Rapanos v. United States, No. 04-1034, and Carabell v. U.S. Army Corps of Engineers, No. 04-1384, back to the 6th U.S. Circuit Court of Appeals, holding that the U.S. Army Corps of Engineers' broad interpretation of "waters of the United States" was not based on a permissible construction of the statute.
"To ensure that the quality of our nation's waters is protected, the federal government must oversee the activities that take place in navigable rivers and streams," said NAHB President David Pressly. "But Congress did not authorize the agencies to control activities in every remote creek, brook or drainage ditch, especially if those features do not support commerce. The court today correctly recognized that there must be limits to how far the federal government can reach upstream."
NAHB filed a brief of amicus curiae on behalf of the petitioners in the two wetlands cases in December of 2005, prompted by member pleas to help fight the expensive, time consuming and often duplicative regulatory morass they must slog through to get the appropriate permits to build homes. The regulatory morass resulted in higher prices for home buyers and have never been the laudable goal of the Clean Water Act, Pressly noted.
“When Congress first passed the Clean Water Act in 1972, the Cuyahoga River was on fire. Our nation’s waterways were coated with oil and became flammable, and Congress passed the act with those dire circumstances in mind,” Pressly said. "The cases addressed today go far beyond the intent.
“Wetlands are an important part of our natural heritage," added Pressly. "The Florida Everglades and Chesapeake Bay marshlands are just a few of the aquatic resources that must be preserved for future generations. But not every swamp, puddle or roadside ditch rises to that level. We should focus our resources and budget to conserve those wetlands that truly warrant protection.”
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