February 21, 2007 - The National Association of Home Builders has submitted its opening brief to the U.S. Supreme Court in NAHB v. Defenders of Wildlife.  The Court plans to hear oral arguments in April.

The case centers on the transfer of Clean Water Act permitting authority from federal regulators to the state of Arizona. The Defenders of Wildlife say that the U.S. Environmental Protection Agency, which administers the act, did not consider the needs of endangered species before it decided to transfer authority for the National Pollutant Discharge Elimination System (NPDES) permitting program to the state.

 

EPA and NAHB both agree that the federal agency didn’t consider endangered species when it decided to transfer permitting authority to the state -- because it isn’t supposed to, the law says.  “The plain language of CWA Section 402(b) requires EPA to approve state NPDES programs if nine specific criteria are met. None of those criteria mentions protection of listed species or the ESA.,” said the NAHB brief.

 

As the judge in the lower court pointed out in denying a rehearing, “courts cannot add conditions to the list” of criteria. Congress created the act to “prevent, reduce and eliminate pollution” and called for states, not the federal government, to manage the permit program, NAHB’s brief said.

 

EPA, the Home Builders Association of Central Arizona and the Southern Arizona Home Builders Association also are parties to the lawsuit.

 

Forcing EPA once again to issue discharge permits in Arizona will cost builders more time and money, and that will make homes less affordable in affected areas.  According to the U.S. Fish and Wildlife Service, the time delays from consultations in the case of one protected species in Arizona ranged from five to 18 months which, when added to the cost of onsite mitigation and project modifications, cost a typical development between $1.7 million and $2.7 million.

 

“We all share a big responsibility to protect our endangered and threatened species. That’s why NAHB is working hard with Congress to reform the Endangered Species Act,” said NAHB president Brian Catalde, a home builder in Southern California.
 
Adding additional criteria to a Clean Water Act permit adds expense that is passed on to home buyers, Catalde pointed out. “Furthermore, there is no logic to twisting 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.”

http://www.nahb.org/news_details.aspx?sectionID=148&newsID=4075