The Supreme Court, in its final environmental decision this term, delivered a favorable opinion concerning wetlands permits that adopted the position that NAHB had put forward in its amicus brief.

In Coeur Alaska v. Southeast Alaska Conservation Council, the Court made clear that a single discharge of pollutants did not require two permits under the Clean Water Act. Environmental groups had sought a ruling that would have required a land owner to obtain permits from both EPA (or a state delegated with permitting authority) and the Army Corps of Engineers, for a single addition of fill material. 

Also, the Court made clear that effluent limitation guidelines (ELGs) – that is, technologies to control pollutant discharges under EPA/state section 402 permits – have no application to a section 404 permit issued by the Corps for discharge of fill.

This is critically important, because EPA currently is developing an ELG for construction activities and will issue that new regulation by year-end. This week's decision means that any construction ELG from EPA will not apply to a project that already has a Corps section 404 permit.

As Justice Kennedy wrote for the majority, “[a] two-permit regime would cause confusion, delay, expense, and uncertainty in the permitting process.”

Thus, while it remains time-consuming and expensive to obtain Clean Water Act permits, a contrary decision would have made it far more difficult to navigate the already burdensome and costly Corps and EPA bureaucracies.

This case concludes a highly successful Supreme Court term for NAHB.  In the four environmental cases that the high Court reviewed on the merits, NAHB’s amicus briefs tracked the high Court’s majority opinions in each matter. [Return to top]