On May 31, 2016, the United States Supreme Court issued a unanimous opinion, penned by Chief Justice Roberts, ruling that approved jurisdictional determinations ("JD") of the existence of waters of the United States on private property are final agency decisions subject to immediate judicial review. In United States Army Corps of Engineers v. Hawkes Co., Inc., No. 15-290 (U.S. May 31, 2016), a group of peat mining companies challenged the U.S. Army Corps of Engineers ("Corps") JD stating that their property contained federally regulated wetlands protected by the Clean Water Act ("Act").
The Hawkes decision relieves a landowner from having to choose between the expensive and risky options of either engaging in the Corps' wetland permit application process or discharging fill material without a permit to face an enforcement action by the Environmental Protection Agency ("EPA") which shares authority with the Corps to enforce the Act. Now, landowners can challenge the federal government's ability to restrict development activities on their property prior to engaging in the full-blown permit process when an approved JD has been issued.
The Act prohibits the discharge of any pollutant into "waters of the United States" without a permit to do so from the Corps. Part of the permitting process involves the Corps' determination of whether waters subject to its jurisdiction under the Act – often wetlands – are present on the property. An "approved" JD definitively states either the presence of absence of such water on the property, whereas a "preliminary" JD merely is advisory. An approved JD is binding for five years on the Corps and the EPA, and a party risks the imposition of serious civil and criminal penalties for discharging pollutants onto the property without a permit from the Corps. The Court ruled in Hawkes that since such legal consequences flow from an approved JD it is a final agency action subject to immediate judicial review.
The decision is the latest challenge to the scope of the Clean Water Act. In 2015, the Corps and EPA issued the Clean Water Rule in which they attempted to clarify which waters fall within the jurisdictional scope of the Act. The Clean Water Rule currently is stayed nationwide pending resolution of multiple challenges in the Sixth Circuit Court of Appeals.
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This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.