September 24, 2015

Supreme Court scheduled to consider important Clean Water Act cases

By M. Reed Hopper Senior Attorney

Thomas Jefferson warned, “The natural progress of things is for liberty to yield and government to gain ground.”  That warning applies full force to the Clean Water Act.  Under the Act, the government can “federalize” private property by declaring the property contains so-called waters of the United States.  A formal declaration of this type is known as a Jurisdictional Determination (i.e. wetland delineation) that may limit or even prohibit the use of private property without federal approval, effectively giving Washington bureaucrats a veto power over local land and water use.

The scope of the Clean Water Act is hard to conceive and covers millions of land owners throughout the Nation.  According to Supreme Court Justice Antonin Scalia,

On [the government’s] view, the federally regulated “waters of the United States” include storm drains, roadside ditches, ripples of sand in the desert that may contain water once a year, and lands that are covered by floodwaters once every 100 years.  Because they include the land containing storm sewers and desert washes, the statutory “waters of the United States” engulf entire cities and immense arid wastelands.  In fact, the entire land area of the United States lies in some drainage basin, and an endless network of visible channels furrows the entire surface, containing water ephemerally wherever the rain falls. {According to the government], [a]ny plot of land containing such a channel may potentially be regulated as a “water of the United States.”

Although the Supreme Court invalidated this broad, almost limitless, interpretation of federal power, in PLF’s 2006 Rapanos case, the Corps of Engineers and the Environmental Protection Agency continue to regulate private property beyond the limits set by the court. And, to add insult to injury, the lower courts have ruled for decades that a landowner does not have the right to challenge a Jurisdictional Determination in court even if the landowner can demonstrate the determination is in error.  This is a clear due process violation that, ironically, encourages illegal enforcement of the law.

To protect the right of landowners nationwide to contest government overreaching under the Clean Water Act, PLF is litigating two cases now pending in the Supreme Court of the United States.  The cases are Kent Recycling v. Corps of Engineers and Corps of Engineers v. Hawkes.  Both cases raise the same issue: May a landowner immediately challenge a Jurisdictional Determination in court?

In Kent Recycling, the Fifth Circuit Court of Appeals held that landowners do not have the right to challenge such determinations in court whereas the Eighth Circuit in Hawkes held just the opposite.  In an unusual twist of fate, PLF represents the private parties in both cases.  Both cases have been petitioned to the High Court to resolve the conflict between the two circuits.  Because of the conflict, it is likely the Supreme Court will grant review in one or both cases.

Kent Recycling (14-493) is first up and will be considered for review by the court on September 28.  Eleven days later, on October 9, the court will decide whether to hear the Hawkes (15-290) case.  So, within the next couple of weeks we should know whether the Supreme Court will address this important question of law.

What to read next