The U.S. Supreme Court issued a highly anticipated decision in the case of Sackett v EPA that significantly narrows the extent of wetlands within the definition of “waters of the United States” (WOTUS), and therefore subject to protection under the Clean Water Act (CWA). In the case of Sackett v. EPA, the court ruled the EPA and the U.S. Army Corps of Engineers had overreached their regulatory authority over wetlands.
Real estate partner Peter Alpert told the National Law Journal he doesn’t expect this Congress to act with regard to the Clean Water Act.
“This is a conservative decision from a conservative court that landowning and agricultural interests really like. They love this decision,” Alpert said.
“Even if you flip the house in 2024, I don’t think this Congress is going to step in and say ‘no, no, the intent here was to reach these attenuated wetlands that have a nexus from a water quality perspective, and we want to amend the Clean Water Act,’” Alpert added.
Peter also noted that the regulated community is grappling with the ruling for current projects and waiting to see what EPA’s rulemaking will entail.
“It’s going to take a long time for a rule that survives litigation. So it’s not months, it’s years before there is a rulemaking that’s in effect, a regulation that’s in effect, that reflects this decision.”
In the meantime, Peter added, “Any developer thinking of a project and wondering about the effect of this decision on their project needs to consult a lawyer and a consultant and analyze on their own—without the benefit of any regulation they can read—as to whether the wetland issue is in or out.”
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