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A Decision Long in Coming and Worth Celebrating
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R. Randy Lee, Chair
NAHB Legal Affairs Committee | NAHB’s participation in the Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers cases is the latest in a series of legal, regulatory and legislative interventions that NAHB staff and volunteers have made on behalf of the membership to navigate the twists and turns of the Clean Water Act. This week, Nation’s Building News sat down with R. Randy Lee, chairman of NAHB’s legal affairs committee and a home builder and developer in New York City, to talk about the association’s work.
When did NAHB start to examine the impact of the Clean Water Act?
NAHB has been in the Clean Water Act business since the day the act was passed in 1972. Soon after it was passed, our volunteers and staff began to see that the federal Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers weren’t satisfied with the limits that Congress had put on their jurisdiction ― limits that, in fact, NAHB had a hand in negotiating, so we knew that they were dead wrong.
Was legal action considered right away?
No. In order to have litigation, you first have to have a dispute over the issuance of a storm water or wetlands permit or a violation of the law or regulation. So it took some years after the act took effect for arguments or disputes to turn into lawsuits.
However, from the very beginning, NAHB’s regulatory staff worked long and hard to try to make sure that the regulations proposed by the bureaucrats did not exceed the authority granted to them by the Clean Water Act. Unfortunately, it was, and continues to be, an uphill battle.
The government believes, under some stretch if its collective imagination, that it is entitled or authorized to regulate potholes in parking lots, drainage ditches and isolated “wetlands” that are miles away from the closest body of water.
Some of the more egregious attempts had to do with the continued inclination shown by these government agencies to regulate completely isolated bodies of the water, and I use the term “body” loosely, since they’ve been known to try to regulate farm ponds — more often than not man-made ― and of course in recent years, roadside ditches.
And that’s when the association began to look for a more effective fix?
Exactly. NAHB jumped in when the Corps went too far and began to hold up entitlements and require permits where they had no jurisdiction.
Its jurisdictional and regulatory hook regarding even the smallest patches of wetness is the interstate commerce clause of the U.S. Constitution. The Corps claimed it could regulate upland waters, isolated wetlands and prairie potholes on the theory that they might be used by migratory birds, which of course don’t respect state lines, stopping off for a drink on their way to wherever they go.
The legal actions of NAHB members supported by our legal staff have done a lot to rein this in. For instance, in the early 1990s, the U.S. 7th Circuit Court of Appeals heard the two Hoffman Homes cases. In the first case, the court ruled that the EPA had no jurisdiction over isolated waters. Subsequently, in Hoffman Homes II, it found that the water body in question was not a suitable habitat for migratory birds as had been alleged by the EPA.
In the late 1990s the 4th Circuit Court of Appeals affirmed the case of Tabb Lakes, Ltd. v. United States, agreeing that the Corps was incorrectly relying on its migratory bird guidance because that guidance was issued without public notice and comment.
Finally in 2001, the U.S. Supreme Court made clear in the case involving the Solid Waste Authority of Northern Cook County — the famous SWANCC v. Corps ― that federal agencies could not use the presence of migratory birds as basis to determine that a geographic feature is a “navigable water” under the Clean Water Act.
NAHB was involved all of these cases, in one capacity or another.
And now we’ve arrived at the Supreme Court’s decision in the Rapanos and Carabell cases. What does this ruling mean to NAHB members, and what kind of impact will it have on home builders and developers?
In the very short term, the impact of the decision will not be very great. It will be a long time before we see any changes. The Supreme Court has instructed that new regulations be drafted by the U.S. Army Corps of Engineers, which based on past performance, is sure to be a glacial exercise.
Then as is usual, the environmental groups will object strenuously, saying the regulations are too broad, that they don’t appropriately protect the nation’s wetland resources. Of course, NAHB will get right in the fray, continuing to draw attention to how the government continues to go far beyond its legislative mandate as proscribed by the new decision in the Carabell and Rapanos cases.
Very often the issue of what the regulations say winds up in litigation, so while all of this is happening, years may go by and meanwhile, the EPA and the Corps will use that opportunity to continue business as usual. But NAHB will be there in their faces all along the way.
So you’re saying that home builders won’t see regulatory relief right away.
No, not immediately. But that being said, there is no question that every home builder or developer who has an application or a matter pending at EPA or the U.S. Army Corps of Engineers should carry a copy of this decision in their pocket. And they and their land use and engineering professionals should not be afraid to pull it out and demand that during the local permit process, regardless of whether the new regulations are in effect yet, that the reviewers need to follow the law.
Based on NAHB’s prior experience and learning in regulatory areas other than those involving wetlands, we have found that our members often get good results by waving copies of court decisions and making threats of litigation — even in this interim stage.
A second area where our members will benefit is in those situations where they have wetland litigation pending. It is absolutely clear that any federal trial court judge or appellate panel will have to carefully read the Rapanos and Carabell decision to make sure that whatever the court does is fully within the letter and spirit of that decision.
Justice Scalia called the Corps’ interpretations a parody, for goodness’ sake. And Chief Justice Roberts pointed out that now the lower courts will have to “feel their way on a case-by-case basis.” They took the Corps to task because the Corps didn’t do its jobs ― something that NAHB has been saying for years.
I believe that the members of the NAHB can do nothing less than to stand up and cheer and take their hats off.
And what happens next?
The next step in the process is for the U.S. Army Corps of Engineers to follow the lead of the direction of the Supreme Court and get to work on drafting new regulations that stick to the letter of the law as written, not as the Corps has tried to imagine it was over the last 40 years. And frankly, it’s high time.
To read details about last week's U.S. Supreme Court decision in the Rapanos and Carabell cases elsewhere in this issue, click here.
 ‘Storm Water Permitting: A Guide for Builders and Developers’ Available at BuilderBooks.com
“Storm Water Permitting: A Guide for Builders and Developers,” available through BuilderBooks.com, provides a starting point for builders and developers to use in locating and understanding storm water permitting requirements. To view or purchase this publication online, click here, or call 800-223-2665.
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