WASHINGTON, DC -- The National Multi Housing Council applauds the U.S. Supreme Court's ruling yesterday that the U.S. Army Corps of Engineers (Corps) exceeded its authority under the Clean Water Act when it denied two Michigan developers permits to build on isolated wetlands that are only linked to larger bodies of water through man-made drainage ditches. (Rapanos v. United States, U.S., No. 04-1034, 6/19/06, and Carabell v. U.S. Army Corps of Engineers, U.S., No. 04-1034, 6/19/06).
By a 5-4 decision, the court ruled that a simple hydrological connection between a wetland and navigable water does not justify federal jurisdiction. NMHC and a coalition of real estate interests filed a "friend of the court" brief in the case that asserted that there is simply no basis in science and law for extending federal jurisdiction to these isolated wetlands that are miles away from, and far from being adjacent to, the nearest navigable water.
"NMHC has long asserted that the current regulatory system is overly broad, unevenly applied and excessively burdensome with respect to the time and costs involved in the permitting process," said Eileen Lee, NMHC's Vice President of Environment.
In 2001, the U.S. Supreme Court ruled that the Corps does not have jurisdiction over non-navigable, isolated wetlands. (Solid Waste Agency of Northern Cook County [SWANCC] v. U.S. Army Corps of Engineers, 581 U.S.159). Since then, however, there has been a series of inconsistent rulings by the lower courts on this matter.
"Unfortunately, our requests over the years for a regulatory or legislative clarification solution to this ambiguity has proved unsuccessful, forcing property owners to seek relief from the courts," said Lee. "At a minimum, yesterday's ruling makes it clear that the Corps has gone too far."
The Supreme Court decision referred to the Corps as "an enlightened despot" in its decisions about permitting activities, and stated "the Corps has stretched the term 'waters of the United States' beyond parody." The Court also affirmed the principle that regulation of land use is inherently a state issue and that "the extensive federal jurisdiction urged by the Government would authorize the Corps to function as a de facto regulator of immense stretches of intrastate land -- an authority the agency has shown its willingness to exercise with the scope of discretion that would benefit a local zoning board."
Although the Court reaffirmed the rights of property owners, it did not fully clarify the Corps' authority under the Act, ruling instead that the Corps can regulate wetlands that have a "significant nexus" with water quality in adjoining wetlands.
"This case-by-case approach will likely force the Corps to revise its regulations and force Congress to clarify the ongoing ambiguities and uncertainties present in the Act," noted Lee. "While the ruling is a clear victory for property owners, the issue remains very contentious."
"Environmental activists are pushing Congress to expand the Clean Water Act," said Lee, "and Congress sent a message of support for such action with a 222-198 vote in the U.S. House of Representatives on the issue in May. The close court ruling combined with the close vote in the House means this will be a protracted battle."
Based in Washington, DC, NMHC is a national association representing the interests of the larger and most prominent apartment firms in the U.S. NMHC's members are the principal officers of firms engaged in all aspects of the apartment industry, including owners, developers, managers and financiers. Nearly one-third of Americans rent their housing, and almost 14 percent live in a rental apartment. For more information, contact NMHC at 202/974-2300, e- mail the Council at info@nmhc.org, or visit NMHC's web site at http://www.nmhc.org/.
Source: National Multi Housing Council
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CONTACT: Michael Tucker of National Multi Housing Council,
+1-202-974-2360, mtucker@nmhc.org
Web site: http://www.nmhc.org/
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