Supreme Court creates new opportunity to challenge Clean Water Act obligations
by Mandy Hicks
The U.S. Supreme Court ruled this week that landowners can challenge an Army Corps of Engineers’ finding that their property falls under the jurisdiction of the Clean Water Act.
The Act requires that an individual or business obtain a permit before filling any wetlands that meet the definition of “waters of the United States.” Exactly what qualifies as a water of the United States is far from clear, and is the subject of separate federal litigation. What is clear is that the agencies have broadly applied their authority and the implications to landowners are onerous. Chief Justice Roberts noted in Tuesday’s opinion that the average individual permit applicant spends 788 days and $271,596 coming into compliance.
The petitioners in U.S. Army Corps of Engineers v. Hawkes Co., Inc. operate a peat mine in northern Minnesota. In 2012, the Army Corps of Engineers found that a tract they hoped to mine was covered by the Act, because it had a significant nexus with the Red River, 120 miles away. Before this ruling, a landowner like the petitioners would not have been able to challenge a Corps wetlands designation before either incurring significant costs to obtain a permit, or being cited for failing to do so. Tuesday’s unanimous decision clarified that when the Corps makes a determination like this one, that decision is a final agency action which can be immediately challenged in court.
Under this decision, a property owner can now challenge a Corps determination that the Act applies before undertaking the costly and time-consuming process of obtaining a permit, and before risking civil and criminal penalties by failing to do so.