Supreme Court´s Decision on Wetlands Only Goes So Far Last week’s 5-4 Supreme Court ruling reining in the Army Corps of Engineers’ jurisdiction over wetlands and its costly and confusing permitting process bodes well for builders and affordable housing advocates who have been fighting for more practical jurisdictional boundaries of the Clean Water Act. But the court’s decision gives no indication how or when the Corps’ regulatory process should be improved. In the decision, the Supreme Court remanded the combined Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers cases back to the U.S. 6th Circuit Court, saying that the Corps’ jurisdiction should be limited. However, the divergence of Justices’ opinions in the decision sets no clear boundaries for the Corps and, instead, leaves that to future court cases and new Corps regulations to accomplish. “Builders are clearly better off when navigating the regulatory process with this decision in place than they were last week,” said R. Randy Lee, chairman of NAHB’s legal affairs committee and a developer from Staten Island, N.Y. But because the justices could not agree on how or by how much to limit the Corp’s role in the permitting process, home builders’ optimism should be tempered, Lee added. As Chief Justice John Roberts said of the decision, “It is unfortunate that no opinion commands a majority of the Court on precisely how to read Congress’ limits on the reach of the Clean Water Act. Lower courts and regulated entities will now have to feel their way on a case-by-case basis.” Writing the plurality opinion on behalf of Justices Clarence Thomas and Samuel Alito and Chief Justice Roberts, Justice Antonin Scalia said, “The average applicant for an individual permit spends 788 days and $271,596 in completing the process, and the average applicant for a nationwide permit spends 313 days and $28,915 — not counting costs of mitigation or design changes. “The burden of federal regulation on those who would deposit fill material in locations denominated ‘waters of the United States’ is not trivial,” he wrote. Scalia’s sometimes scathing comments — he referred to the Corps as an “enlightened despot” that has “stretched the term ‘waters of the United States’ beyond parody” ― centered on the regulatory creep that home builders experience in the course of their work. “The enforcement proceedings against Mr. Rapanos are a small part of the immense expansion of federal regulation of land use that has occurred under the Clean Water Act — without any change in the governing statute — during the past five Presidential administrations,” Scalia said. The Justice also chided Congress for ducking the question of jurisdiction. The courts should not have to decide what constitutes a water of the United States, Scalia said, but “neither, however, should it be answered by appointed officers of the Corps of Engineers in contradiction of congressional direction…Even if the term ‘the waters of the United States’ were ambiguous as applied to channels that sometimes host ephemeral flows of water (which it is not), we would expect a clearer statement from Congress to authorize an agency theory of jurisdiction that presses the envelope of constitutional validity.” In a dissenting opinion, Justice Stephen Breyer said the Corps should step up as well. “In the absence of updated regulations, courts will have to make ad hoc determinations that run the risk of transforming scientific questions into matters of law. That is not the system Congress intended. Hence I believe that today’s opinions, taken together, call for the Army Corps of Engineers to write new regulations, and speedily so.” Justice Anthony Kennedy agreed with Scalia, Roberts, Thomas and Alito that the decision should be remanded, but not for the same reasons. He cited the question of “significant nexus” in his vote, which resulted in the 5-4 decision. “Five justices have agreed that an intermittent hydrological connection is not enough for the Corps to assert jurisdiction,” said Tom Ward, NAHB assistant staff vice president for litigation. “That certainly puts our members in a better position than they are now when they apply for a permit.” NAHB staff and volunteers will continue to work with Congress and federal regulators and agencies toward a rulemaking and more definitive guidance for home builders, he added. NAHB filed a brief of amicus curiae on behalf of the petitioners in the Rapanos and Carabell wetlands cases in December of 2005, prompted by member pleas to help fight the expensive, time consuming and often duplicative regulatory morass they must slog through to get the appropriate permits to build homes. | 
