The EPA wetlands case before the U.S. Supreme Court this week involves a narrow due process issue but for NAR the case provides an opportunity for real estate interests to press their property-rights effort on behalf of property owners.
In the wetlands case, EPA stopped a couple from building their home in an already developed subdivision out of a concern that the property contains a wetlands. The couple wants to have that question reviewed—that is, is there or isn’t there a wetlands on the property? But EPA says that question can’t even be looked at until the couple first restores the land to the way it was before try started to build and then monitor the property for three years.
For the couple, that directive amounts to a violation of their due process rights. NAR agrees.
But NAR also sees an opportunity in the case, because from its point of view, EPA’s action is an example of the kind of regulatory overreach that’s been a problem with the agency since the Clean Water Act was enacted in 1972. That law very clearly says EPA and the U.S. Corps of Engineers have Clean Water Act jurisdiction over navigable waters. But for years, the agencies have been using guidance documents to expand that definition to include other types of water. In the case before the Supreme Court this week, the property doesn’t even contain water except for periodically throughout the year. For NAR, should EPA even be regulating this piece of property?
In the video above, NAR analyst Russell Riggs explains what’s at stake in the case.
January 10 update. Read the Washington Post’s report on the Supreme Court’s hearing, called “Justices are skeptical of EPA actions in land case.”
Read the brief filed by NAR and other groups.