Citing the need to halt excessive regulation and keep housing more affordable, the National Association of Home Builders has filed a brief of amicus curiae on behalf of the petitioners in two wetlands cases before the U.S. Supreme Court: John A. Rapanos, et al. vs. the United States and June Carabell, et al. vs. the United States Army Corps of Engineers.

The issue in both cases concerns whether and when a non-navigable and even man-made feature, such as a ditch or storm sewer system, can be considered a “navigable water” under the Clean Water Act and thus be subject to federal permitting requirements.

“Complying with those requirements can add thousands of dollars to the cost of a new home without offering the environmental benefits the Act was designed to promote,” said NAHB President Dave Wilson, a custom home builder from Ketchum, Idaho. “It’s a waste of taxpayer resources to treat a ditch for rainwater with the same scrutiny as we would the Snake River.”

When it created the Clean Water Act in 1987, Congress defined ditches as point sources, that is, channelized features that transport water and sediment from, for example, a subdivision and into a storm drain. Under the Act, a permit is required to control sediments and other pollutants that leave a ditch and flow into navigable water. Requiring a permit before the water and sediment even get into a ditch, which the builder himself dug to construct a housing project, is much more onerous than the intent of the original legislation and doesn’t offer a corresponding benefit to improve water quality.

Filed on Dec. 2, NAHB’s brief focuses on three main arguments:

  • The drainage ditches at the Rapanos and Carabell sites are not “navigable waters,” but are “point sources.” The ditches at issue in Carabell drain into a municipal storm sewer system already permitted under the Clean Water Act to control pollutant discharges.

  • The U.S. Supreme Court has held that wetlands next to open water are subject to the Clean Water Act. The Court of Appeals has now stretched the Clean Water Act’s jurisdiction to reach wetlands immediately adjacent to point sources, overreaching the intent of Congress.

  • In prior cases, the U.S. Supreme Court also has established that the Clean Water Act covers non-navigable features with a “significant nexus” to navigable water. Whether the nexus between a non-navigable feature and truly navigable water is “significant” will vary from case to case. However, to meet its burden of proving a significant nexus in court, the federal government must, at a minimum, show that upstream activities will have a negative impact in downstream navigable waters. In Rapanos and Carabell, the federal government made no such showing of negative effect. Indeed, there is no indication in either of these cases that common dirt–the pollutant at issue–even left the construction sites.

“NAHB has developed comprehensive familiarity with the [Clean Water Act] permitting requirements, provides compliance advice to its members, and, unfortunately, has witnessed numerous situations where federal regulators have exercised their authority beyond the Act’s limits,” the brief said.

“There are an estimated 3.9 million miles of roads in the nation, and regulations require that federally funded primary roads must be ‘designed — and maintained to have adequate drainage, cross drains, and ditch relief drains’,” the brief argued. Requiring permits assuming that all these ditches are navigable and subject to regulation and permitting makes no sense and would be prohibitively expensive to administer, NAHB said. “Congress could not have intended such an absurd result.”

NAHB is a Washington-based trade association with more than 220,000 members.

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Send tips or a Letter to the Editor to jessica@inman.com or call (510) 658-9252, ext. 133.

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