June 9, 2015

Clean Water Act jurisdiction – an update

By M. Reed Hopper Senior Attorney

We have already noted here and here that the Corps and EPA have settled on a final version of their new rule drastically redefining “waters of the United States” subject to federal control throughout the Country.  That rule should be published any day in the Federal Register.  Sixty days after publication, the new rule will become effective.  That will be the time to batten down the hatches because the rule asserts jurisdiction over virtually all waters and much of the land in the Nation.  But PLF and others will be challenging the rule upon publication as invalid, both statutorily and constitutionally.

The new rule, known colloquially as the WOTUS rule, underscores the significance of some other cases we are involved in to protect individual liberties and private property rights under the Clean Water Act.

You may recall that we are litigating two cases to get the courts to allow immediate judicial review of a Jurisdictional Determination (or wetland delineation) issued by the Corps.  These determinations claim to be the Corps’ last word on whether a parcel of land contains waters subject to federal regulation under the Clean Water Act.  If the land contains such waters, which (under the new rule) could include a ditch, stream or puddle-sized pothole, the landowner is prohibited from using that portion of the property without a federal permit, which can run into thousands of dollars for a small project or hundreds of thousands of dollars for a large project.  Failing to get a federal permit can subject the landowner to severe civil penalties (up to $37,500 per day), imprisonment, or both.

If the Corps is wrong in its determination of jurisdictional waters, which often happens, the landowner has been unable to challenge the determination in court.  Most courts require the landowner to first get a permit, then challenge the need for a permit in court.  This defies commonsense but the federal government has adamantly opposed judicial review of Jurisdictional Determinations for years.

To make the federal government accountable for its Jurisdictional Determinations, PLF filed a petition to the Supreme Court to review the case of Kent Recycling where Kent can show the determination was erroneous.  At first, the Supreme Court denied our petition, but that changed when we won a similar case in the Eighth Circuit Court of Appeals.  In Hawkes v Corps of Engineers, the court ruled in our favor that Jurisdictional Determinations impose great burdens on landowners and landowners should have the right to challenge the Corps’ jurisdictional claims in court.  This decision created a conflict with the decision of the Fifth Circuit Court of Appeals in Kent Recycling.  Based on that change in circumstance, the Supreme Court has directed the Solicitor General to explain why it should not hear our petition for review.  In the meantime, the Corps has filed a motion for rehearing in the Eighth Circuit claiming the panel decision in Hawkes is wrong and should be overturned.

The Hawkes decision was unanimous and well reasoned.  It is unlikely the Eight Circuit will rehear the case.  But it does make for some interesting drama.  With the WOTUS rule hanging over our heads, the need for a resolution of this issue could not be more pressing.  In a few weeks, we should hear from both courts how they will proceed.  Stay tuned.

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