US property developers applaud Supreme Court decision limiting oversight of water pollution

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US real estate developers scored a big victory after the Supreme Court imposed new limits on the Environmental Protection Agency’s authority over the country’s wetlands.

In the latest blow to the EPA, the US highest court decision narrowed the scope of the 1972 Clean Water Act, which allows the agency to regulate pollutants discharged into “US waters” such as lakes, rivers and oceans.

The case arose from an Idaho couple who challenged the EPA after they were prevented from building a house near a ditch that flowed into a mountain lake.

In a written majority opinion by Judge Samuel Alito on the central question of which wetlands qualified for EPA oversight, the court found that the Clean Water Act allowed only for regulation of wetlands that have a “continuous surface connection ” with “United States waters ”.

EPA previously had the power to address pollution of wetlands with a “significant nexus” to navigable waters, even if separated from land. But, wrote Alito, the EPA had “no legal basis to impose [this test]”.

Environmental advocates said the court’s opinion could lead companies to dump more pollutants into the water. Manish Bapna, chairman of the non-profit Natural Resources Defense Council, said the ruling “tore the heart out” of laws that protect US waters and wetlands. “This decision will cause incalculable damage.”

The ruling will leave regulation of wetlands to US states, whose regimes vary widely. Real estate developers expect the decision will streamline construction without requiring federal permits.

“We were actually very, very happy with the decision,” said Thomas Ward, vice president of legal defense at the National Association of Home Builders, a trade body, adding that applying for permits was “very expensive and time consuming.”

Ward said it could take a year or more to acquire these permits. “And time is such a killer on projects because you’re holding all your loans and all the interest is adding up,” she added.

In a brief filed in support of the Idaho couple, the NAHB listed examples of developers facing protracted litigation, including an Illinois company seeking to build residences in wetlands subject to the Clean Water Act. challenged the status of the wetlands, starting a 13-year legal battle that ended in a settlement and the government agreeing to pay $250,000 in legal fees.

The Supreme Court’s decision is the second to weaken the EPA’s authority, after last year’s braked the agency’s ability to limit greenhouse gas emissions from power plants.

EPA Administrator Michael Regan called Thursday’s ruling “disappointing” and said his agency would carefully consider its next steps.

US President Joe Biden said the decision “overturns the legal framework that has protected American waters for decades” and would put US wetlands and associated bodies of water “at risk of pollution and destruction.”

Water pollution rules differ greatly from state to state, with some like Montana is implementing more lax regimesand others, such as California, which impose stricter frameworks.

“In places where there are no supportive state protections or local protections, I expect a real push for development and destruction in the wake of this [decision]said Jon Devine, director of federal water policy at NRDC. The environmental group estimated that at least half of the roughly 110 million acres of wetlands in the contiguous United States would become “vulnerable.”

All nine justices supported the court’s ruling, but some disagreed with the majority interpretation of the Clean Water Act. Elena Kagan, along with two fellow liberal justices, wrote that there was “a thumb on the balance sheet for homeowners”.

Kagan also noted the earlier case and the EPA’s outcome, saying both court decisions “diminished” broad legal notions. “[A] the court may not rewrite the simple instructions from Congress because they go beyond what is desired,” he said.

Conservative Judge Brett Kavanaugh said the majority’s “excessively narrow view” of the Clean Water Act “will have a real impact.”

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