June 3, 2016
The Supreme Court ruled in U.S. Army Corps of Engineers v. Hawkes Co., Inc., that landowners may challenge the Corps’ jurisdictional determination specifying that a piece of property contains a water of the United States.
Related: Not every pothole needs protection
The suit was filed by three companies who were mining peat in Marshall County, Minnesota. The companies filed for a Section 404 Dredge and Fill permit from the Army Corps of Engineers for their property in December 2010. Section 404 permits authorize “the discharge of dredge or fill material into the navigable waters at specified disposal sites,” according to the Supreme Court opinion.
In a unaminous decision issued May 31, the court affirmed the decision of the Eighth Circuit Court of Appeals, which held that the Corps’ final approved jurisdictional determination is a final agency action reviewable under the Administrative Procedure Act. (Photo: AVNphotolab/Thinkstock)
The Corps signaled the permitting process would be expensive and take years to complete, according to the court opinion.
In February 2012, the Corps issued an “approved jurisdictional determination” that the property contained “water of the United States.” The companies appealed and the case was accepted by the Supreme Court after moving through several courts. It was argued before the Supreme Court on March 30.
In a unanimous decision issued May 31, the court affirmed the decision of the Eighth Circuit Court of Appeals, which held that the Corps’ final approved jurisdictional determination is a final agency action reviewable under the Administrative Procedure Act.
American Farm Bureau Federation and the National Cattlemen’s Beef Association filed amicus curiae briefs in the lower court and the Supreme Court in support of the plaintiffs who were represented by the Pacific Legal Foundation.
Both were pleased with the decision.
“This case highlights the issues landowners and land-use stakeholders have with the Clean Water Act,” said Tracy Brunner, NCBA president. “Neither of the options provided to landowners are realistic under the current regulatory environment. Applying for a 404 permit is expensive, exhaustive and time consuming. Gambling on EPA enforcement and risking civil and criminal penalties is foolish. This case strikes a balance that at least gives us some measure of regulatory certainty in the notoriously unclear Clean Water Act.”
“Today’s decision removes a huge roadblock that has prevented landowners from obtaining relief from the courts when the Corps illegally claims their land is federally regulated water,” AFBF President Zippy Duvall said. “Now, farmers and ranchers can have their day in court when the government tells them they cannot plow a field or improve a ditch without a federal permit.”
The Court recognized that once the Corps finds that a landscape feature is a “water of the United States,” there are immediate and often dire legal consequences to the landowner, Duvall said. A farmer can continue a farming activity that results in an unlawful discharge and face an enforcement action with civil fines up to $37,500 a day per discharge, or even criminal penalties. Or, the farmer can spend tens, if not hundreds, of thousands of dollars seeking federal Clean Water Act permits over several years only to have the permit ultimately denied.
Related: What Hawkes means for WOTUS
In his concurrence, Justice Kennedy expressed the Court’s continued concern with the Clean Water Act, “[t]he Act… continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.” NCBA is committed to continuing its WOTUS lawsuit on behalf of its members.
Source: Supreme court, NCBA, AFBF
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