In the decision, the Supreme Court remanded the combined Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers cases back to the U.S. 6th Circuit Court, saying that the Corps?EUR??,,????'??? jurisdiction should be limited. However, the divergence of Justices?EUR??,,????'??? opinions in the decision sets no clear boundaries for the Corps and, instead, leaves that to future court cases and new Corps regulations to accomplish.

?EUR??,,????'??Builders are clearly better off when navigating the regulatory process with this decision in place than they were last week,?EUR??,,????'?? said R. Randy Lee, chairman of NAHB?EUR??,,????'???s legal affairs committee and a developer from Staten Island, N.Y. But because the justices could not agree on how or by how much to limit the Corp?EUR??,,????'???s role in the permitting process, home builders?EUR??,,????'??? optimism should be tempered, Lee added.

As Chief Justice John Roberts said of the decision, ?EUR??,,????'??It is unfortunate that no opinion commands a majority of the Court on precisely how to read Congress?EUR??,,????'??? limits on the reach of the Clean Water Act. Lower courts and regulated entities will now have to feel their way on a case-by-case basis.?EUR??,,????'??

Writing the plurality opinion on behalf of Justices Clarence Thomas and Samuel Alito and Chief Justice Roberts, Justice Antonin Scalia said, ?EUR??,,????'??The average applicant for an individual permit spends 788 days and $271,596 in completing the process, and the average applicant for a nationwide permit spends 313 days and $28,915 ?EUR??,,????'??+ not counting costs of mitigation or design changes.

?EUR??,,????'??The burden of federal regulation on those who would deposit fill material in locations denominated ?EUR??,,????'??waters of the United States?EUR??,,????'??? is not trivial,?EUR??,,????'?? he wrote.

Scalia?EUR??,,????'???s sometimes scathing comments ?EUR??,,????'??+ he referred to the Corps as an ?EUR??,,????'??enlightened despot?EUR??,,????'?? that has ?EUR??,,????'??stretched the term ?EUR??,,????'??waters of the United States?EUR??,,????'??? beyond parody?EUR??,,????'?? ?EUR??,,????'??+ centered on the regulatory creep that home builders experience in the course of their work.

?EUR??,,????'??The enforcement proceedings against Mr. Rapanos are a small part of the immense expansion of federal regulation of land use that has occurred under the Clean Water Act ?EUR??,,????'??+ without any change in the governing statute ?EUR??,,????'??+ during the past five Presidential administrations,?EUR??,,????'?? Scalia said.