In the latest turn of a decades-old debate over which waters are subject to protection under the 1972 Clean Water Act, the Supreme Court ruled to significantly expand the ability of farmers and developers alike to dig up or fill wetlands near rivers, lakes, and streams. While clear that the Section 404 program’s jurisdictional reach has been reduced, and perhaps dramatically so, the precise extent of the limits imposed on the program will remain unclear.
The court's Thursday decision will only bring more of the same, real estate partner Peter Alpert told Law360 Thursday.
"You cannot read this decision and know what's in and what's out," he said. "That's not possible. What you get from this decision is ideological direction that would reduce the scope of the program. The extent is going to be determined through rulemaking and litigation."
The case, Sackett v EPA, argued that property owners didn't need a Clean Water Act permit to build a home on their land.
“The decision may also leave states to play a larger role in regulating water sources. For states like Massachusetts, which has a stricter water regulation regime than the federal government, the ruling may not have much practical effect, said Peter.
In states with less stringent regulation, Thursday's ruling will likely lead to worse water quality overall, he said.
"I do think it's a myth that the states will belly up and do the right thing by way of wetland protection," he said. "Not all states will. Many states already have. If you consider the right thing to be to protect as many wetlands as you can from loss."
The ruling may result in developers not seeking permits for projects that could disturb wetlands. “And those who are discussing settlements for wetland damage or building new ones to compensate for losses might back out,” Peter said to the Wall Street Journal.
“Everybody involved in enforcement actions … is going to hit the pause button on negotiations with agencies right now and question with their consultants whether under this decision there is a reason to even be talking with the government,” he said.
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