November 13, 2015

High Court to decide wetlands cases

By M. Reed Hopper Senior Attorney

For more than a year, we have been waiting on the Supreme Court of the United States to decide if it will hear a challenge to a Corps of Engineers’ faulty Jurisdictional Determination (JD) that delineates wetlands on private lands subject to federal regulation under the Clean Water Act.  In Kent Recycling v. Corps, the agency issued a Jurisdictional Determination that a Corps  hearing officer held was invalid because the determination was based on bad law and incomplete facts.  Nevertheless, the JD was issued without correction imposing a duty on the land owner to obtain an extraordinarily costly federal permit before using the land. Using the land without a federal permit would have subjected the landowner to ruinous fines and imprisonment.  So, Kent Recycling sought to challenge the validity of the JD in court.

Unfortunately, the trial court and Fifth Circuit Court of Appeals held that Jurisdictional Determinations are not reviewable in court and the landowner must obtain a permit even if the JD is faulty.  PLF took on the case and petitioned the Supreme Court for review.  Although the High Court initially decided to not hear the case, perhaps because there was no split of opinion in the lower courts, the court decided to rehear the case when the Eighth Circuit Court of Appeals ruled in a similar PLF case, Corps v. Hawkes, that Jurisdictional Determinations are reviewable in court.  Because that case went against the Corps, the agency petitioned Hawkes to the Supreme Court.  Now, with two conflicting cases pending, the Supreme Court is ready to decide whether it will hear these cases to resolve the conflict.  The court is expected to issue a decision on the matter on Monday, December 7.

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