U.S. Supreme Court Agrees to Hear Wetlands Cases

On an issue that has far-reaching implications for home building and the affordability of housing, the Supreme Court has agreed to hear three cases involving the federal government’s power to regulate wetlands. NAHB has filed amicus briefs in two of the cases, asserting that man-made ditches may not be regulated under the Clean Water Act.

In selecting the cases, “the Supreme Court clearly recognized the myriad wetlands issues left unresolved under the Clean Water Act," said NAHB President Dave Wilson. "The court's decision to resolve all three cases on their merits sends a positive signal that the home building industry may yet see improved clarity and predictability in the regulatory process, and Americans may see their tax dollars better spent on meaningful wetlands conservation."

At issue in two of the cases — Rapanos v. United States and Carabell v. Army Corps of Engineers — is the definition of "navigable waters of the United States" under the Clean Water Act, which gives the federal government the power to regulate surface waters and wetlands.

A string of court decisions and inconsistent enforcement by federal agencies has made the definition of a wetland unclear and overly broad, going so far as to require landowners to obtain a federal permit for actions that affect a drainage ditch that they created on their own land.

The wetlands permitting program, administered by the U.S. Army Corps of Engineers under Section 404 of the law, is rife with uncertainty, cumbersome paperwork requirements and lengthy permitting delays that drive up the cost of building a home, home builders have complained.

In the third case — S.D. Warren Co. v. Maine Board of Environmental Protection — the issue is the Clean Water Act's definition of "discharge," which has a bearing on whether or not permitting is required to certify compliance with clean water standards. As with "navigable waters," the scope of the term "discharge" has led to both regulatory and judicial confusion.

"As stewards of much of the nation's developable land, home builders have taken a lead role in protecting wetlands," said Wilson. "But it does not make sense to put a puddle created by a truck tire during a rain storm in the same regulatory category as the Everglades. Nor does it make sense to use the Clean Water Act as a tool to regulate the mere movement of soil, when Congress only intended to regulate situations where pollutants are added to navigable waters."

"The wetlands program's scarce resources should be devoted to protecting the nation's true wetlands, in keeping with Congress's intent when it passed the Clean Water Act," said Wilson.

For more information, e-mail Duane Desiderio in NAHB's Litigation department, or call him at 800-368-5242 x8146. [ return to top ]