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High Court Rules for NAHB in Clean Water Permit Case

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RISMEDIA, June 27, 2007–The U.S. Supreme Court has ruled in favor of regulatory balance — and environmental stewardship — in a five to four decision regarding home builders’ consultation requirements under the Endangered Species Act.

In the case of National Association of Home Builders v. Defenders of Wildlife, the court reversed and remanded a lower court decision that required the U.S. Environmental Protection Agency to consider the protection of “listed” species before handing Clean Water Act permitting authority over to the state of Arizona. The EPA had determined that the state met all the necessary criteria for receiving that authority.

“This decision recognizes that we must always maintain a balance when we look at environmental regulations. We can’t say that the Endangered Species Act is an ‘uber-statute’ that should slow down regulatory decisions under the Clean Water Act even as we recognize that both laws concern issues that are vital to preserving this earth for the next generation,” said NAHB President Brian Catalde. “This decision also tells us that the U.S. Supreme Court is helping to preserve housing affordability by striking down efforts at unnecessary, duplicative regulation,” he said.

“Congress created the Clean Water Act to prevent, reduce and eliminate pollution,” Catalde said. “But it’s the Clean Water Act, not the Arid Desert Act. There is no logic to twisting a program designed to protect the waters of the United States to give special considerations to species that have no relation to that water.”

The Clean Water Act also calls for the states, not the federal government, to manage permitting programs when the EPA determines that nine specific criteria have been met. None of those criteria mentioned required consultations regarding over species protected under the Endangered Species Act.

Forcing the EPA to issue discharge permits in Arizona — which an unfavorable Supreme Court decision would have required — would have cost builders more time and money, making homes less affordable in affected areas.

In the case of one protected species in Arizona, the U.S. Fish and Wildlife Service estimated that Endangered Species Act consultations delayed the typical development by five to 18 months and, when added to the cost of onsite mitigation and project modifications, cost between $1.7 million and $2.7 million, Catalde pointed out.

“We all share this important responsibility to protect our endangered and threatened species. NAHB is working hard with Congress and the Administration to reform the Endangered Species Act with appropriate protections in mind,” Catalde said. “However, there is no need to tack on additional requirements to the ones that all parties agree Arizona has already met. The Endangered Species Act does not trump all other important environmental considerations. The Supreme Court has agreed, and we applaud their decision.”

The National Association of Home Builders is a Washington-based trade association representing more than 235,000 members involved in home building, remodeling, multifamily construction, property management, subcontracting, design, housing finance, building product manufacturing and other aspects of residential and light commercial construction. Known as “the voice of the housing industry,” NAHB is affiliated with more than 800 state and local home builders associations around the country. NAHB’s builder members will construct 80% of the more than 1.45 million new housing units projected for 2007.

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