Lawyers brood over small ponds

September 16, 2002

Legal coalition aims to research, recast Federal definition of 'wetland'

By Bridget McCrea
Inman News Features

Bodies of water as inconspicuous as small ponds could become a real morass for real estate brokers if the nation's courts continue basing wetland case decisions on what some call "antiquated" criteria.

To prevent that from happening, the Washington law firm of Hunton & Williams has formed a coalition to review wetlands cases and file amicus briefs with various judicial venues, and the National Association of Realtors has allocated $25,000 to be used to participate in the cases on a pro rata and case-by-case basis. Other groups involved in the coalition include the National Association of Home Builders, the Building Industry Legal Defense Foundation, the Foundation for Economic and Environmental Progress.

At issue is SWANCC v. United States, in which the U.S. Supreme Court ruled that only truly navigable waters constituted waters of the United States for purposes of the Federal Clean Water Act.

That ruling significantly reduced the scope of the Federal government's jurisdiction over wetlands. But Hunton & Williams partner Virginia Albrecht said lower courts nationwide still apply a more expansive interpretation of the scope of Federal jurisdiction over wetlands and the U.S. Environmental Protection Agency has issued administrative guidance that offers an inappropriately limiting interpretation of the ruling.

"The question is: Is it a truly navigable body of water or is it just a small pond that should be dealt with on a local or state level?" Albrecht said.

What are implications for real estate brokers? The issue is that a home's location on or near a body of water protected by the Federal Clean Water Act can have a major impact on its sale, said Albrecht.

The coalition of law firms aims to keep jurisdiction over non-navigable bodies of water at the state or local level and out of Federal courts. To accomplish that goal, the coalition is reviewing cases that address the scope of the Clean Water Act's jurisdiction over wetlands and filing amicus briefs to assert its position on the scope of Federal wetlands jurisdiction as defined by SWANCC and interpreted by the coalition's lawyers.

Copyright: Inman News Service

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