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.”
NAR is part of a group that has submitted a friend of the court brief to the Supreme Court arguing that the actions by the U.S. EPA violated the property rights and right of due process of Chantell and Mike Sackett of Priest Lake, Idaho. Although the Court will hear arguments on a the relatively narrow legal issue of due process and the wetlands appeals process, NAR believes that broader principles are at stake, including the overreaching regulatory authority of the EPA.
Four years ago the couple bought a piece of land of under an acre that sits squarely in a developed subdivision, with a sewer infrastructure already in place, overlooking Priest Lake in the Idaho panhandle. The couple secured local building permits and even received a verbal okay from the U.S. Army Corps of Engineers that the property, which has water on it periodically but isn’t adjacent to any standing body of water, is not a wetlands. But as soon as the Sacketts started to build their home, EPA officials, citing the agency’s authority under the Clean Water Act, ordered them to stop and restore the property to the way it was before they did any work on it.
They were also ordered to take other costly restoration and monitoring activities. Once these requirements were met, only then could they go through the wetlands permitting appeals process. What’s more, the EPA said it could impose a fine of up to $32,500 a day for every day they didn’t comply.
Although this sounds like a case of over-reach by the EPA, the issue before the Supreme Court only concerns whether the Sacketts have the right to challenge the EPA’s assertion that the property contains a wetlands. EPA says the Sacketts can’t challenge its assertion until after it files formal charges against the Sacketts for building on a wetlands, which it hasn’t done yet. And it won’t consider that question until the Sacketts first spend the money and take the time to restore the property to its previous state.
The Sacketts say the issue of whether the property is a wetlands is central to the dispute and needs to be resolved in court now if they’re to get their proper due process rights. NAR agrees, but the lower courts have sided with the EPA, saying regulatory agencies would be hamstrung in their ability to enforce their rules if parties like the Sacketts can chellenge them in court before they’ve taken formal regulatory action.
NAR will be monitoring the case closely when the court hears oral arguments on Monday, Jan. 9, because of its importance to the protection of private property rights.
Read the brief filed by NAR and the other associations.