Supreme Court takes another PLF Clean Water Act case

December 11, 2015 | By REED HOPPER

For more than 40 years, millions of landowners nationwide have had no meaningful way to challenge wrongful application of the federal Clean Water Act to their land.  The Clean Water Act authorizes the Army Corps of Engineers and Environmental Protection Agency to regulate discharges to navigable “waters of the United States.”  Contrary to the express language of the Act, limiting Supreme Court precedent, including PLF’s 2006 Rapanos case, and constitutional constraints, these mavrick agencies claim that “waters of the United States” cover virtually all waters and much of the land in the Country.  As Justice Alito rightly observed in PLF’s 2012 Sackett case, this puts landowners at the mercy of the government. Land that contains so-called jurisdictional waters is partially or wholly subject to a federal veto power over the land use.  When private lands are “federalized” under the Clean Water Act, landowners are given the Hobson’s choice of (1) abandoning all use of the land, (2) obtaining a federal permit to use the land at ruinous cost (e.g. more than $270,000 for an individual permit), or (3), proceeding to use the land without federal approval subjecting the landowner to fines of $37,500 a day and criminal prosecution for any alleged violation of the Act.

But what if the Army Corps or the EPA overstep their authority and claim jurisdiction over lands that are not subject to the Clean Water Act? What recourse do the landowners have to challenge the erroneous application of the law?  Until now, landowners have had no right to go to court to challenge agency overreaching under the Act.  Instead, they have had to acquiesce to Corps demands.This is a travesty of justice and the Eighth Circuit said as much in Hawkes v. Corps that was decided earlier this year.  In that case, the Corps issued a formal Jurisdictional Determination (i.e. wetlands delineation) that Hawkes’ property was covered by the Act even though a Corps reviewing officer had declared the Jurisdictional Determination was invalid because the agency did not follow the law and the Corps had insufficient evidence to support the conclusion that Hawkes’ property contained wetlands subject to federal control.  When Hawkes sought to challenge the Jurisdictional Determination in court, the government argued Hawkes had no right to judicial review until Hawkes had first obtained a permit that Hawkes argued was not required because the property does not contain jurisdictional wetlands. Fortunately, the Eighth Circuit sided with PLF and the landowner and ruled Corps Jurisdictional Determinations are subject to immediate challenge in court.  For the first time in the history of the Clean Water Act, this decision provided landowners with their only practical safeguard against abusive enforcement of the Act.

However, the Hawkes decision only applies in the Eighth Circuit.  Other courts had come to the opposite conclusion.  In Kent Recycling the Fifth Circuit held Jurisdictional Determinations are not subject to challenge in court.  The Ninth Circuit came to the same conclusion in the Fairbanks case.  This three-way split among the Circuit Courts of Appeals was tailor-made for resolution by the Supreme Court of the United States.  Therefore, PLF, who represented the plaintiffs in all three cases, petitioned the High Court to address the issue.  After the Corps defeat in Hawkes, the Corps joined us in asking the court to resolve the conflict and decide once and for all whether a Jurisdictional Determination can be challenged by a landowner in court.

The Corps issues tens of thousands of Jurisdictional Determinations each year and, under the Corps and EPA’s new and expansive interpretation of “waters of the United States,” the Act potentially covers literally millions of landowners across the Country.  Today, the court granted review in the Hawkes case.  You can read our press release here.  We look forward to litigating this case to vindicate the rights of landowners nationwide.