NAHB Calls On Supreme Court To Define Federal Jurisdiction Under Clean Water Act...Decision in U.S. v. Needham Affirms that Feds Cannot Regulate Puddles and Roadside Ditches

December 17, 2003 - The federal government may not impose regulations over non-navigable waters, the U.S. Court of Appeals for the Fifth Circuit decided yesterday, in a decision that directly contradicts previous circuit court decisions. The National Association of Home Builders (NAHB), which filed an amicus brief in support of the Fifth Circuit’s finding, has called on the Supreme Court to resolve the debate as other branches of government have refused to issue policy language, guidance or rules on Clean Water Act jurisdiction.

"Landowners, home builders, developers and regulatory field officials have no coherent guideposts from the Bush Administration on the limits of federal regulation under the Clean Water Act," said Kent Conine, president of NAHB and a home and apartment builder from Dallas. "It’s time for the Supreme Court to step in and confirm that puddles and ditches are not navigable waters so that we are not needlessly increasing the area we have to regulate with finite budgetary resources."

In U.S. v. Needham, the Fifth Circuit ruled that "the Clean Water Act and the Oil Pollution Act are not so broad as to permit the federal government to impose regulations over ‘tributaries’ that are neither themselves navigable nor truly adjacent to navigable waters. Consequently, in this circuit the United States may not simply impose regulations over puddles, sewers, roadside ditches and the like."

The Fifth Circuit relied heavily on the 2001 decision, Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers (SWANCC), in which the Supreme Court ruled that Clean Water Act regulation does not extend to isolated wetlands. But the Needham ruling is in direct contradiction to other circuit court decisions, notably U.S. v. Deaton, where the Fourth Circuit ruled in favor of virtually limitless jurisdiction, putting a remote, shallow drainage ditch eight miles from the closest navigable water under federal regulation.

Landowners will see no clarification from regulatory agencies, according to a joint statement issued by U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers Dec. 15. The agencies said there will be no rulemaking on activities in isolated wetlands, leaving the courts to decide individually whether the federal government has jurisdiction and what activities may be allowed in wetlands. This makes for inconsistent and unpredictable decision-making by judicial bodies with little expertise in environmental policy.

"What we learned from the Needham decision is that if the Deatons’ land were in Texas, their ditch would not have been regulated by the federal government," said Conine. "Without action from the EPA, the Supreme Court is the only realistic forum that can resolve the question of jurisdiction and take landowners like the Deatons out of regulatory limbo, and we urge the justices to take the case."

NAHB Blasts EPA & Army Corps Decision On Wetlands Jurisdiction

December 17, 2003 - The National Association of Home Builders today announced its significant disappointment over yesterday’s joint decision by the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (the Corps) not to issue a new rule that would help redefine its jurisdiction over "waters of the U.S."

"EPA and the Corps have shirked their rulemaking responsibility by relegating this critical environmental decision regarding isolated wetlands to the courts. This is bad for business and bad for wetlands," said, Kent Conine, NAHB president and a home and apartment builder from Dallas. "This decision completely ignores the issues raised by the U.S. Supreme Court’s SWANCC ruling and leaves builders, developers and landowners in limbo."

In 2001, the U.S. Supreme Court ruled in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers that Clean Water Act (CWA) regulations do not extend to isolated wetlands. Further, jurisdictional decisions should be made based on the traditional concepts of navigability or the presence of a significant nexus to navigable waterways. Since the SWANCC decision, the agencies have failed to provide a comprehensive, natural approach to jurisdictional decisions - choosing instead to instruct field staff within each district to interpret local court decisions. Despite this ruling, EPA and the Corps have continued to assert jurisdiction over isolated wetlands without any clear definition of an isolated wetland or clarification of its jurisdiction.

"A rulemaking would simply ensure consistency and predictability over which isolated wetlands can be regulated by the federal government. However, many environmentalists argued that rulemaking is synonymous with a rollback of Clean Water Act. This is absolutely untrue and a blatant misstatement of the facts," said Conine.

Absent a rulemaking decision by EPA and the Corps, builders and land developers will continue to face widely varying approaches to wetlands regulation and problems that have persisted since the SWANCC decision.

Consistency and predictability are the two goals that NAHB has sought since the SWANCC decision was made.