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Supreme Court unanimously backs landowners in Clean Water Act case

By Mateusz Perkowski

EO Media Group

Published on June 1, 2016 6:41PM

The U.S. Supreme Court Monday ruled unanimously that landowners can challenge a federal government determination that their property is subject to Clean Water Act restrictions.

Landowners can challenge a federal government determination that their property is subject to Clean Water Act restrictions, the U.S. Supreme Court unanimously ruled today.

With federal officials facing a new source of lawsuits, they must now do a better job justifying their conclusions, legal experts say.

“The cavalier attitude toward asserting authority under the Clean Water Act we hope will change,” said Reed Hopper, an attorney with the Pacific Legal Foundation, a public interest legal organization.

The nation’s highest court rejected arguments by the U.S. Army Corps of Engineers that its “jurisdictional determinations” can’t be challenged in court because they’re merely advisory opinions that property is subject to the Clean Water Act.

The ruling is a victory for farmers and other landowners who would rather sue to prove their property doesn’t fall under the agency’s jurisdiction than seek costly Clean Water Act permits or abandon their projects.

The federal government argued that landowners are free to ignore a jurisdictional determination and then fight the U.S. Environmental Protection Agency when defending against an enforcement action.

Chief Justice John Roberts, in his opinion for the court, dismissed the claim that landowners must expose themselves to sanctions to question the government’s conclusions.

“Respondents need not assume such risks while waiting for EPA to ‘drop the hammer’ in order to have their day in court,” Roberts said.

The practical effect is that federal agencies will need a solid scientific basis that private property has a “significant nexus” with waterways protected by the Clean Water Act, said Hopper, who argued the Supreme Court case on behalf of the Hawkes Co., which was blocked from extracting peat moss from its wetlands.

“The Corps is going to have to get its ducks in a row. It’s going to have to provide data to support its decision that this is a water of the U.S.,” he said.

In the Hawkes case, the government required the company to obtain a Clean Water Act permit because the wetland allegedly had a “significant nexus” with a river 120 miles away.

William Funk, a professor at Lewis & Clark Law School, said he’s an environmentalist but agrees with the Supreme Court that it’s wrong to use jurisdictional determinations for the “power of extortion.”

While obtaining a Clean Water Act permit is expensive, “litigation isn’t cheap, either,” he said.

Landowners aren’t likely to file lawsuits over jurisdictional determinations “willy-nilly,” but the prospect of litigation will force the government to be more careful than it otherwise would be, Funk said.

The Supreme Court’s ruling was “pretty predictable” in light of its 2012 decision that EPA “compliance orders” — which forced landowners to remediate alleged Clean Water Act violations — are reviewable in federal court, he said.

In the most recent case, the Supreme Court told the government that its theories of Clean Water Act jurisdiction are subject to checks and balances, said Danielle Quist, senior counsel for public policy at the American Farm Bureau Federation.

“There hasn’t been a lot of sunshine on how the Corps determines its jurisdiction,” she said.

Enforcement of the Clean Water Act is problematic because it’s often unclear what’s a violation of the statute, Quist said.

“There are due process concerns if you don’t know what’s expected of you or what is lawful or unlawful, and when there’s criminal penalties involved,” she said.

It is possible that federal agencies will simply stop offering “jurisdictional determinations” when they’re requested by landowners, since no statute requires such decisions, Funk said.

However, that isn’t likely because the government benefits from the process, since landowners voluntarily turn over information instead of forcing federal agencies to compile data themselves, he said.

The government issues tens of thousands of jurisdictional determinations a year, but only a handful are disputed administratively, said Hopper.

Since most landowners accept the government’s conclusions, it’s unlikely to stop responding to such requests, he said. “The agency has no incentive to change its current practice.”


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