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Court Case Seen as Opportunity to Halt Regulatory Onrush
Builders see a recent decision by the U.S. Supreme Court to hear NAHB v. Defenders of Wildlife as an opportunity to halt a march of excessive regulation that is a fast-growing threat to housing affordability around the nation.
As reported in NBN last week, the court has agreed to review a lower court ruling that would add new requirements for states that want to administer Clean Water Act permitting programs — and result in additional expenses that would be passed on to home buyers. The court will hear oral arguments in April.
The issue centers on the transfer of the Clean Water Act permitting program from federal regulators to the state of Arizona. The Defenders of Wildlife say that the Environmental Protection Agency (EPA) did not consider the needs of endangered species before it decided to transfer authority to the state.
“It’s quite disturbing. It’s another example of a built-in housing bias on the part of regulators that is the result of pressure that is put on them by environmental zealots,” said R. Randy Lee, chair of the NAHB Legal Action Committee and a home builder and developer in New York City.
“We have a moral imperative to work together, so we can accommodate our need for clean water, an abundance and variety of species and housing for our nation. We cannot allow the scales to tip and collapse under the weight of additional bureaucracy.”
The lawsuit also opens the door to adding Endangered Species Act considerations any time the federal government transfers administrative authority to a state — not just for Clean Water Act permits, but for other programs and permits as well.
The case represents a milestone for NAHB, said NAHB President David Pressly, noting that the association has played an important role in other regulatory cases by submitting friend of the court briefs, but that this lawsuit marks the first time that NAHB has been named as a petitioner.
The association was joined in the suit by the Home Builders Association of Central Arizona and the Southern Arizona Home Builders Association. The EPA also filed suit, and the court consolidated both actions.
Currently, consultations are required if the affected land is considered “critical habitat” or if there are endangered or protected species living there. This new requirement imposed by the lower court would require consultation even where there are no endangered species on the site.
According to an economic impact study by the U.S. Fish and Wildlife Service, the time delays from consultations in the case of the pygmy owl ranged from five to 18 months. When added to the cost of onsite mitigation and project modifications, this added between $1.7 million and $2.7 million to the cost of a typical development in Arizona.
EPA and NAHB both agree that the federal agency didn’t consider endangered species when it decided to transfer permitting authority to the state, nor was it supposed to under the law. The Clean Water Act requires the EPA to allow states to take over permitting authority if they meet nine standards; consideration of the Endangered Species Act is not among them.
“This has nothing to do with whether it’s important to protect endangered species. Of course it is,” said Pressly. “But it is not part of the Clean Water Act. Congress never intended it to be so. It’s also just not logical to use a program designed to protect the waters of the United States to give special considerations to the pima pineapple cactus, a desert plant, and the pygmy owl, which is no longer listed as an endangered species. As Justice Antonin Scalia said about using the Clean Water Act to protect drainage ditches, this extends the reach of the act beyond parody.”
For more information, e-mail Calli Schmidt at NAHB, or call her at 800-368-5242 x8132.
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