High court: landowners can fight naming of wetlands

Carrie Stadheim | for Tri-State Livestock News

The Supreme Court ruled unanimously May 31, 2016, that landowners can challenge U.S. Army Corps of Engineers “judicial determinations” on wetlands in court.

The ruling could have broad ramifications because it raises questions about the future of the Clean Water Act, which prohibits “the discharge of any pollutant” without a permit into “navigable waters,” which it defines, in turn, as “the waters of the United States.”

If the Army Corps rules that a wetland is connected to the “waters of the United States,” then the landowner needs a permit to discharge pollutants. Mining companies and farmers are often at odds with the Army Corps over what constitutes a wetland and whether it is connected to water that comes under the Clean Water Act.

In the case of U.S. Army Corps of Engineers v. Hawkes Co., three mining companies in Marshall County, Minn., sought a court review on approved judicial determination that a property contained “water of the United States” because its wetlands had a “significant nexus” to the Red River of the North, located some 120 miles away.

“It’s hard to overstate the importance of this ruling. Until today, it was ruinously expensive to challenge a determination that land could be regulated under Clean Water Act rules.“ Will Rodger, spokesman for the American Farm Bureau Federation

Respondents appealed the determination to the Corps’ Mississippi Valley Division commander, who remanded the case for further fact-finding. The Corps then reaffirmed its conclusion and issued a revised judicial determination to that effect.

The respondents then sought judicial review under the Administrative Procedure Act, but the district court dismissed the case for lack of jurisdiction, saying that the revised determination was not “final agency action for which there is no other adequate remedy in a court,” as required by the APA before judicial review.

The Court of Appeals for the Eighth Circuit reversed the decision, and the case ended up in the Supreme Court.

In the ruling, Chief Justice John Roberts wrote, “The Corps contends that the revised JD [judicial determination] is not “final agency action” and that, even if it were, there are adequate alternatives for challenging it in court. We disagree at both turns.”

An Environmental Protection Agency spokeswoman said “EPA is reviewing the decision with the Department of Justice and the Army Corps of Engineers,” and added, as background, that “This decision does not affect the Clean Water Rule or scope of Clean Water Act jurisdiction.”

But critics of EPA and the Army Corps noted that some justices said the situation raised broad questions about the Clean Water Act and said it could affect how the courts rule on the Clean Water Rule (also known as the Waters of the United States rule), which is making its way through the courts after being challenged.

“It’s hard to overstate the importance of this ruling,” said Will Rodger, a spokesman for the American Farm Bureau Federation. “Until today, it was ruinously expensive to challenge a determination that land could be regulated under Clean Water Act rules.”

“To fight the determination, farmers had to defy the Army Corps and defend themselves in court while racking up fines of $37,500 a day per violation in hopes of beating the government and getting that money back,” Rodger said. “If they didn’t like those odds, they could apply for a permit that would likely not be granted at the cost of tens or hundreds of thousands of dollars, to boot.”

“Now, finally, farmers and ranchers have a chance. It’s a bit shocking to think this situation went on as long as it did,” he said.

The National Cattlemen’s Beef Association, which had filed an amicus brief in support of Hawkes, said the decision is “a major victory for landowners across the country.”

“This case highlights the issues landowners and land-use stakeholders have with the Clean Water Act,” said NCBA President Tracy Brunner.

“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.”

NCBA noted that, in his concurrence, Justice Anthony Kennedy expressed the court’s continued concern with the Clean Water Act, which he said “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.”

Sen. John Barrasso, R-Wyo., said in a statement, “The Obama administration may think it’s above the law, but the Supreme Court confirmed today it certainly is not.”

“This decision is just the latest blow to the president’s regulatory rampage,” Barrasso said.

“Families and small businesses across the country shouldn’t have to fight Washington just to use their own property. Now the Supreme Court should go one step further and strike down the entire Waters of the United States (WOTUS) rule before more Americans are strangled by this unprecedented Washington water grab.”

But John Rumpler, a senior attorney for Environment America, said in a news release that he court’s decision underscores the need for the Clean Water Rule.

“By clarifying which wetlands are automatically protected under the Clean Water Act, the Clean Water Rule avoids costly lawsuits for both landowners and the public,” Rumpler said.

“Unfortunately, polluters and their allies have used the courts to halt the rRule itself from going into effect, perpetuating the very confusion that leads to cases like Hawkes.

“The Clean Water Rule is based on sound science and overwhelming public support. The courts should move expeditiously to affirm the Rule, so that all parties can have greater certainty over protection of our vital wetlands.”

–The Hagstrom Report