Unanimous SCOTUS: You Can Judicially Challenge A Clean Water Act Jurisdictional Determination

by Robert Thomas, InverseCondemnation, May 31, 2016

This just in. The Court, in an opinion authored by Chief Justice Roberts:

The Clean Water Act regulates the discharge of pollutants into “the waters of the United States.” 33 U. S. C. §§1311(a), 1362(7), (12). Because it can be difficult to determine whether a particular parcel of property contains such waters, the U. S. Army Corps of Engineers will issue to property owners an "approved jurisdictional determination” stating the agency’s definitive view on that matter. See 33 CFR §331.2 and pt. 331, App. C (2015). The question presented is whether that determination is final agency action judicially reviewable under the Administrative Procedure Act, 5 U. S. C. §704.

United States Army Corps of Engineers v. Hawkes, No. 15-290 (May 31, 2016).

Short answer: yes.

The opinion is as bland as you might expect, focusing as it does on the Administrative Procedures Act. CJ had to get everyone aboard, after all.

But Justices Kennedy, Thomas, and Alito wrote separately to note that "the reach and systemic consequences of the Clean Water Act remain a cause for concern. As Justice Alito has noted in an earlier case, the Act's reach is 'notoriously unclear' and the consequences to landowners even for inadvertent violation can be crushing."

More to follow.

PDF: United States Army Corps of Engineers v. Hawkes, No. 15-290 (U.S. May 31, 2016) 

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Farm Bureau Hails Supreme Court Victory: Farmers and Ranchers May Sue to Stop Clean Water Regulation of Ordinary Farmland

News Release from Farm Bureau

WASHINGTON, D.C., May 31, 2016 - A unanimous Supreme Court today ruled landowners may challenge the federal government whenever the Army Corps of Engineers tries improperly to regulate land with regulations designed to protect water.

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. 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 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."

AFBF 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. The case was titled United States Army Corps of Engineers v. Hawkes Co., Inc.

Today's ruling builds on another unanimous ruling, Sackett v. EPA. The Court today 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. 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.

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FOX: Thanks to EPA and Army Corps of Engineers, American farmers are a newly endangered species