Win for Home Owners in Clean Water Act Case
In a victory for real estate, the U.S. Supreme Court ruled yesterday that property owners don't have to wait until they have a permit denied before they can sue the federal government over whether their property is subject to Clean Water Act regulation.
Read moreBackground on the summary inThe Voice for Real Estate.
The U.S. Army Corps of Engineers, which determines whether a property is subject to the Clean Water Act, had said that its rulings, or jurisdictional determinations, are not final agency actions. For that reason, owners should wait until they've applied for a permit and had it denied before they file a lawsuit challenging the decision, it said. Alternatively, they could proceed with development without a permit and then sue after they're penalized by the government.
Property owners contended it was unfair for them to have to go through an expensive and time-consuming permitting process before they could challenge the government's determination. They also questioned incurring penalties while they wait for their opportunity to sue.
The court sided with owners, saying the Corps' jurisdictional determinations are, in fact, final agency actions because they mark the end of the agency's decision-making process and come with legal consequences. The court also disagreed with the contention that owners could proceed without a permit at the risk of being penalized.
"If respondents [acted] in the mistaken belief that their property did not contain jurisdictional waters, they would expose themselves to civil penalties of up to $37,500 for each day they violated the Act, to say nothing of potential criminal liability," the court said.
The National Association of REALTORS® and the National Association of Home Builders filed a brief in the case that anticipated the Supreme Court's decision by arguing in favor of owners' right to sue the federal government without having to wait until their permit is denied.
—Robert Freedman, REALTOR® Magazine
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