December 22, 2014

Clean Water Act argument reviewed

By M. Reed Hopper Senior Attorney

Earlier in the month I argued the case of Hawkes Co. v. Corps of Engineers in the 8th Circuit Court of Appeals where we are seeking judicial review of an erroneous Jurisdictional Determination (JD) issued by the Corps.  This is a case where the JD was issued without sufficient evidence to show the wetlands at issue are subject to federal jurisdiction under the Clean Water Act.  On administrative appeal, the hearing officer agreed with Hawkes that the agency had overreached and needed to back up the JD with site specific data.  But instead of providing this additional data, the Corps simply reissued the JD in final form claiming the wetlands were subject to federal regulation.  This means Hawkes cannot disturb the wetlands in any way without going through a costly permit process or risk heavy fines or imprisonment.  We argued the permit requirement was absurd given the dispute over federal jurisdiction and that Hawkes should be able to challenge the agency jurisdiction in court now.  InsideEPA provided an excellent review of the argument and the case here.  We hope the court will decide the case soon because we have a similar case on petition to the U.S. Supreme Court in Kent Recycling v. Corps of Engineers.  A favorable decision from the 8th Circuit would almost guarantee review of the issue by the High Court.


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U.S. Army Corps of Engineers v. Hawkes

Hawkes Company is a family-owned business in Minnesota that harvests peat moss, for landscaping. The U.S. Army Corps of Engineers improperly claimed jurisdiction over the property as regulated wetlands. This put Hawkes in the untenable position of (1) abandoning all use of the land at great loss; (2) spending several hundred thousand dollars to seek an unnecessary federal permit; or (3) using the land without federal approval at the risk of $37,500-a-day fines and criminal prosecution. When Hawkes challenged the Corps in court, lower courts dismissed the case as unripe for review. But the Supreme Court disagreed, holding that a Jurisdictional Determination is a binding legal decision subject to immediate judicial challenge.

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