NAHB, Supreme Court Like-Minded in Wetlands Decision
In its final environmental decision of the term, the U.S. Supreme Court issued a decision on June 22 that helped to clarify the permitting process for the Clean Water Act, rejecting changes that would have made it even more time-consuming for builders and developers.
In Coeur Alaska v. Southeast Alaska Conservation Council, the court made clear that a single discharge of pollutants does not require two permits under the Clean Water Act, an opinion mirroring NAHB’s position in its friend of the court brief.
Justice Anthony Kennedy wrote the decision for a six to three majority.
Builders and developers need to obtain federal permits when they work on property that is recognized as a federally protected wetland. In the case of the construction industry, the “discharge of pollutants” includes moving earth contained on the wetland or adding fill dirt to support homes and infrastructure.
Environmental groups had sought a ruling that would have required land owners to obtain permits from both the U.S. Environmental Protection Agency — or a state delegated with permitting authority — and the U.S. Army Corps of Engineers, for a single addition of fill material.
The court also made clear that effluent limitation guidelines (ELGs) — technologies to control pollutant discharges that are conditions in EPA and state Section 402 permits for storm water management — have no application to a Section 404 permit issued by the Corps for the discharge of fill.
This is a critically important point, because the EPA is currently in the process of developing an ELG for construction activities and is expected to issue that new regulation by the end of this year.
In light of the court’s decision, any construction ELG from the EPA will only apply to storm water management — not also to a Corps Section 404 permit for construction activities in regulated wetlands.
As Justice Kennedy wrote for the majority, a “two-permit regime would cause confusion, delay, expense and uncertainty in the permitting process.”
“While it remains time-consuming and expensive to obtain Clean Water Act permits, a contrary decision would have made it far more difficult to navigate the already burdensome and costly Corps and EPA bureaucracies,” said Duane Desiderio, NAHB vice president for legal affairs.
Coeur Alaska concludes a highly successful Supreme Court term for NAHB. In the four environmental cases reviewed on their merits, NAHB’s amicus briefs tracked the high court’s majority opinions every time.
For more information, e-mail Duane Desiderio, or call him at 800-368-5242 x8146.