Supreme Court upholds landowners rights challenging WOTUS jurisdiction

first_imgShare Facebook Twitter Google + LinkedIn Pinterest In United States Army Corps of Engineers v. Hawkes Co., Inc., the Supreme Court yesterday set a precedent with a unanimous decision that landowners may challenge the Corps’ jurisdictional determination specifying that a piece of property contains a “water of the United States” or WOTUS.Landowners have attempted many times to challenge Corps rulings known as jurisdictional determinations, but the government successfully argued that those determinations were not “final agency actions” and the lawsuits were dismissed in the past. Now, when the Corps asserts jurisdiction over low spots that look more like land than water, it will have to do so with the knowledge that its jurisdictional determination can be tested in court.“Today’s ruling is a victory for those fighting an expansive and burdensome bureaucracy. In Army Corps v. Hawkes, the Supreme Court gave farmers, ranchers, home-builders, and private property advocates much needed relief from bureaucratic red tape. Americans have been forced to spend tens of thousands of dollars or more in permit applications before they can challenge the Army Corps in court on a Waters of the United States determination,” said Congressman Bob Gibbs. “By giving ‘approved Jurisdictional Determinations’ the same legal weight as ‘final agency actions,’ the Supreme Court provided clarity on a contentious issue. Hardworking Americans should have the ability to challenge Army Corps decisions without being forced to go through a significant permitting process. I thank the Supreme Court for this commonsense decision.”The ruling was celebrated by many in agriculture.“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,” said Zippy Duvall, American Farm Bureau Federation president. “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 Hawkes case involved three companies engaged in mining peat in Minnesota. Due to the difficulty inherent in determining the need for a 404 Dredge and Fill Permit, the Army Corps allows property owners to obtain a standalone jurisdictional determination if a particular piece of property contains a WOTUS and therefore requires a 404 permit before using the land. Upon receiving an approved jurisdictional determination that their land did contain a WOTUS, the companies exhausted the administrative remedies available and then filed suit in Federal District Court challenging the Corps’ jurisdictional determination. The government argued that such a jurisdictional determination was not final agency action and that landowners would have to either discharge without a permit and then challenge EPA enforcement or apply for a permit and challenge the outcome.“This case highlights the issues landowners and land-use stakeholders have with the Clean Water Act,” said Tracy Brunner, National Cattlemen’s Beef Association 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.”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.”last_img

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