On April 5, the U.S. Supreme Court decided not to review three cases concerning the regulation of ditches by the Environmental Protection Agency (EPA) and the Army Corps of Engineers.

Rejected were a petition by National Association of Home Builders (NAHB) in the case of Deaton v. United States and two other cases in which the association had submitted amicus briefs for the defendant in federal district court — Newdunn Associates v. United States and Rapanos v. United States.

“The Supreme Court’s refusal to review these cases is a disappointment to home builders nationwide,” said NAHB President Bobby Rayburn. “The Court clearly missed an opportunity to correct the failure of the EPA and the Corps of Engineers to consistently and predictably regulate wetlands under the Clean Water Act.”

In U.S. v. Deaton, the U.S. Court of Appeals for the Fourth Circuit ruled that a shallow drainage ditch in Maryland eight miles from a navigable body of water was subject to regulation under the Clean Water Act. This was inconsistent with the 2001 case of Solid Waste Agency of Northern Cook County (SWANCC) v. Army Corps of Engineers, in which the Supreme Court ruled that the Corps did not have jurisdiction over isolated wetlands.

All three cases pointed to significant inconsistencies in wetlands regulation among the Army Corps districts and differences of opinion by the federal district courts.

“By not reviewing these cases, the Court has created serious consequences for any group seeking clarity in wetlands regulation,” said Rayburn.

The EPA and the Corps have a failing track record for providing regulatory guidance on the legal extent of their jurisdiction over navigable waters. As a result, it has become increasingly difficult for property owners to determine which portions of their land are federally regulated and which are not.

NAHB will continue to monitor all court cases related to this issue and press federal regulators for more definitive wetlands regulation.

For more information about these cases, email Duane Desiderio at ddesiderio@nahb.com or call (800) 368-5242, ext. 8146.