NAHB Weighs in on Two Pending Wetlands Cases
NAHB has submitted two supplemental “friend of the court” briefs in wetlands cases in the wake of June’s Supreme Court Rapanos and Carabel decisions.
In United States v. Johnson, NAHB wants the First Circuit U.S. Court of Appeals to vacate its decision upholding the government’s jurisdictional claim over wetlands adjacent to non-navigable waters that eventually lead to Massachusetts’ Weweantic River and get the case dismissed.
In San Francisco Baykeeper v. Cargill, NAHB wants the Ninth Circuit to strike federal jurisdiction over a pond that collects seasonal rainwater but is never navigable, quoting Supreme Court Justice Anthony M. Kennedy’s opinion that non-navigable, isolated intrastate waters are not to be considered “waters of the United States.”
In the decision prompting the two supplemental briefs, the Supreme Court remanded the combined Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers cases back to the U.S. Sixth Circuit Court, saying that the Corps’ jurisdiction should be limited. However, the justice’s diverging opinions in the decision set no clear boundaries for the Corps, leaving that for future court cases and new Corps regulations to decide.
“It is unfortunate that no opinion commands a majority of the court on precisely how to read Congress’ limits on the reach of the Clean Water Act,” Chief Justice John Roberts said of the decision “Lower courts and regulated entities will now have to feel their way on a case-by-case basis.”
On July 5, the Corps sent a letter to its regional offices, advising them to continue business as usual where jurisdictional issues were quite clear, but to await further guidance to help decide more controversial cases. Guidance was promised within three weeks, but as of Aug. 29, it had not yet arrived.
“The average applicant for an individual permit spends 788 days and $271,596 in completing the process, and the average applicant for a nationwide permit spends 313 days and $28,915 — not counting costs of mitigation or design changes,” Chief Justice John Roberts wrote in the plurality opinion on behalf of Justices Clarence Thomas and Samuel Alito and Chief Justice Roberts.
“The burden of federal regulation on those who would deposit fill material in locations denominated ‘waters of the United States’ is not trivial,” he added.
Scalia’s sometimes scathing comments — in which he referred to the Corps as an “enlightened despot” that has “stretched the term ‘waters of the United States’ beyond parody” ― centered on the growing amount of wetlands regulation with which home builders have to contend.
“The enforcement proceedings against Mr. Rapanos are a small part of the immense expansion of federal regulation of land use that has occurred under the Clean Water Act — without any change in the governing statute — during the past five presidential administrations,” Scalia said.
For more information, e-mail Calli Schmidt at NAHB, or call her at 800-368-5242 x8132.