Major Victory for NAHB and Builder in Clean Water Act Court Case

Filed in Environmental, Legal by on June 29, 2018 1 Comment

On June 26, the U.S. Court of Appeals for the Seventh Circuit sided with an NAHB member engaged in a decade-long legal battle in a case supported by NAHB’s Legal Action Fund – Orchard Hill Building Company v. U.S. Army Corps of Engineers.

The case concerned 13 acres of wetlands owned by Orchard Hill Building Company. Orchard Hill sought a jurisdictional determination as to whether it would need a Clean Water Act section 404 permit from the U.S. Army Corps of Engineers to develop these acres. The Corps found that the acres fell under the jurisdiction of the Clean Water Act.

Orchard Hill disagreed with the Corps’ determination and over a 10-year period fought through the Corps’ internal appeals process. During this time, Orchard Hill’s efforts were buoyed by several court cases.

Orchard Hill finally got its day in court when the U.S. Supreme Court found in U.S. Army Corps of Engineers v. Hawkes that jurisdictional determinations are judicially reviewable. Ultimately, the Seventh Circuit ruled in favor of Orchard Hill, holding that the Corps had failed to prove the wetlands at issue had a significant nexus to any truly navigable water.

NAHB aided Orchard Hill in two distinct ways: First, it provided Orchard Hill with a $10,000 Legal Action Fund grant in 2016. Second, NAHB was involved in every court case that kept Orchard Hill’s claims alive over their decade-long battle.

NAHB’s proactive Litigation and Amicus Brief program allows NAHB to bring lawsuits and submit amicus briefs on siginificant issues that impact NAHB members. Through this program, NAHB aided Orchard Hill by litigating in cases that clarified the bounds of the Clean Water Act, vacated a rule that curtailed the use of the “prior converted croplands” exemption from the wetlands permitting program, and required jurisdictional determinations to be judicially reviewable.

The NAHB Legal Action Committee’s Legal Action Fund is available to NAHB members and HBAs with litigation that implicates a national policy issue or a state or local problem that is common to the housing industry.

For more information about Orchard Hill’s victory, please contact Tom Ward. For more information about the Legal Action Fund, contact Lavon Roxbury.

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  1. Chuck Sundsmo says:

    This is a major victory for states that do not have wetland regulations that go far beyond the WOTUS rule.
    Many states have their own CWA where a nexus to WOTUS does not apply.

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