Senators Explore Supreme Court Wetlands Decision
As legal experts, regulators and home builders continue to debate the ripple effects of the U.S. Supreme Court's recent decision to send the Rapanos and Carabell wetlands permitting lawsuits back to the circuit court, Tom Ward, NAHB’s assistant staff vice president for litigation, on June 29 told the Senate Environment and Public Works Committee that forcing the U.S. Army Corps of Engineers to make their wetlands rules more consistent could result in more environmentally sound land use decisions.
Ward — part of the NAHB team of staff, volunteers and consultants who worked on a friend of the court brief submitted last December — participated on a panel convened last week by the Senate committee to discuss the implications of the Supreme Court’s wetlands decision for the development community.
The panelists agreed that the court’s decision has helped to point up the confusion that continues to swirl over the definition of “navigable waters.” While the majority of justices indicated that they want to rein in the Corps’ broad interpretation of its regulatory jurisdiction, a final definition will likely encompass more than just navigable lakes and bays, rivers and the wetlands next to them.
Panelists told Senate staffers that ditches are a case in point. NAHB hopes that the Corps will study the majority opinions and stop trying to assert jurisdiction over man-made ditches that contain water only some of the time. Justice Antonin Scalia said that a ditch must have relatively permanent water to be considered, while Justice Anthony M. Kennedy said the ditch must have a “significant nexus” to a traditionally defined navigable water. Either way, the justices agreed, a hydrologic connection is no longer an acceptable way to assert jurisdiction over a ditch.
Because builders don’t want to spend the time and money it can take to work with the Corps to obtain a permit to build where the agency has jurisdiction, some choose to design developments that leave potential jurisdictional areas untouched, even if it results in less efficient land use, Ward said.
Cited by Ward was a Wilmington News Journal article explaining how the time, expense and uncertainty of federal permitting under the Corps have led some landowners to work around the ditches. “Dealing with the Corps of Engineers is so onerous, it actually leads to really poor site design,” said a wetlands consultant quoted in story.
NAHB staff and volunteers will continue to work with Congress and federal regulators and agencies toward more definitive guidance for home builders, Ward said.
For more information, e-mail Calli Schmidt at NAHB, or call her at 800-368-5242 x8132.