September 9, 2015

Clean Water Act case gets another boost in the Supreme Court of the United States

By M. Reed Hopper Senior Attorney

I myself am often surprised at life’s little quirks.”  Westley to Buttercup, The Princess Bride

Months ago, we filed a petition for review in the Supreme Court in a case called Kent Recycling v. Corps of Engineers to protect landowners from government overreaching.  In that case, the Fifth Circuit Court of Appeals held that Corps Jurisdictional Determinations (i.e. wetland delineations) on private property could not be challenged directly in a court of law.  The Supreme Court denied our petition.  But shortly thereafter, the Eighth Circuit Court of Appeals held in Hawkes v. Corps of Engineers that Corps Jurisdictional Determinations could be challenged directly in court.  Based on this conflict between the two Circuit Courts, we filed a petition for rehearing with the Supreme Court in Kent Recycling.

The chances of getting the High Court to hear any case is very small; typically, less than 1%.  The chances of getting the court to hear a case based on a petition for rehearing are even smaller.  However, Bloomberg BNA featured our case as one that is likely to beat the odds.  That feature article may prove prophetic.  After persistently arguing that the Supreme Court should not hear Kent Recycling, even to resolve a conflict among the lower courts, today the government did a 180 and filed a petition for review in the Supreme Court in Hawkes asking the court to resolve the conflict between the Fifth and Eighth Circuits arguing it is a matter of great significance demanding the court’s attention.  We agree!

Now that the government is pushing for Supreme Court review, instead of opposing it, it is highly likely the court will grant review in both Hawkes and Kent Recycling, consolidating the cases for briefing and/or oral argument.  Given the favorable precedent PLF set in Sackett v. EPA, on which the Hawkes court relied, we are confident the Supreme Court will follow suit and hold that Jurisdictional Determinations may be directly challenged in court.

This is vital to millions of landowners nationwide who are now subject to the Corps and EPA’s unprecedented rule redefining waters subject to federal jurisdiction under the Clean Water Act.  Without the opportunity for landowners to challenge the claims of the Corps and EPA, that their property is subject to federal control under the Act, these landowners are faced with only three options: (1) abandon use of their property so as to avoid federal jurisdiction; (2) acquire a federal permit to use their property in a way that affects regulated land or water at a cost of tens of thousands of dollars; or (3), proceed with the intended use of their property without a federal permit and risk fines of $37,500 a day and criminal prosecution.

Let’s hope the Supreme Court does the right thing and grants review and affirms a commonsense application of the law that allows landowners the right to challenge illegal government claims of jurisdiction over private lands under the Clean Water Act.

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