- The Washington Times - Tuesday, June 26, 2007

The Supreme Court said yesterday builders must obey clean water laws but do not need to go through an extra procedure to comply with endangered species laws.

The 5-4 ruling gives preference to the Clean Water Act over the Endangered Species Act when states take over the permitting of buildings.

The ruling favors real estate developers and Bush administration policy, but environmentalists say it could threaten the survival of endangered species.

The Clean Water Act gives the Environmental Protection Agency discretion to turn over its building permit authority to states that apply for it, but only if they meet nine criteria for environmental protection.

Protecting endangered species is not on the list of criteria, but the environmental group Defenders of Wildlife said it should be considered.

A Supreme Court majority decision written by Justice Samuel A. Alito Jr. disagreed, saying, “The Endangered Species Act does not “effectively operate … as a 10th criterion on which the transfer of permitting power under the first statute must be conditioned.”

The majority opinion drew a dissent from Justice John Paul Stevens, who said the two laws should not be interpreted as conflicting.

“When faced with competing statutory mandates, it is our duty to give full effect to both if at all possible,” Justice Stevens said.

The National Association of Home Builders said a different ruling would have been “confusing” for courts and imposed another regulatory burden on builders. “It certainly would have an effect on home prices,” said Duane Desiderio, the National Association of Home Builders vice president for legal affairs.

But Rodger Schlickeisen, Defenders of Wildlife president, said the Supreme Court’s decision “could lead to additional extinctions of American wildlife, extinctions which the [Endangered Species] Act is intended to prevent.”

The dispute arose from Arizona’s 2002 application to take over permitting authority from the EPA for housing projects.

The state’s Fish and Wildlife Service determined that transferring permit authority would not affect water quality but was likely to lead to more housing developments, some of which could threaten the habitat of pygmy owls and the Pima pineapple cactus.

The EPA said the threat to wildlife was not among the nine criteria it must consider, which meant there was no reason to block Arizona’s application to issue building permits.

Defenders of Wildlife sued the EPA to stop the state from gaining the building-permit authority. The National Association of Home Builders sued Defenders of Wildlife, saying the environmentalists overstated the Endangered Species Act’s control over real estate developments.

The 9th Circuit Court of Appeals agreed mostly with Defenders of Wildlife in a ruling last year that said the EPA did not adequately protect endangered species when it turned over permitting authority to states.

The appeals court said the agency needed to develop “a single, coherent interpretation” that considered both the clean water and endangered species acts.

The Clean Water Act protects public waterways from harmful discharges. The Endangered Species Act imposes a duty on government agencies to ensure their actions are “not likely to jeopardize the continued existence of any endangered species or threatened species.”

The majority opinion from Chief Justice John G. Roberts Jr. and Justices Alito, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas overturned the lower court decision. Justices Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer dissented.

The EPA issued a statement that the agency would try to protect endangered species in Arizona, but that it agreed with the Supreme Court ruling.

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