Supreme Court Makes it Easier for Landowners to Contest the Federal Government’s Ability to Regulate Their Property Under the Clean Water Act

Brent Kendall reported in today’s Wall Street Journal that, “The Supreme Court on Tuesday made it easier for landowners to contest the federal government’s ability to regulate their property under the Clean Water Act.

“The court, in an opinion by Chief Justice John Roberts, sided with North Dakota-based Hawkes Co., which wants to harvest peat from wetlands in an area of northern Minnesota. Those plans got off track when the U.S. Army Corps of Engineers determined the property contained ‘waters of the U.S.,’ a finding that triggered application of the Clean Water Act.”

The Journal article explained that, “The issue before the Supreme Court was whether Hawkes could proceed immediately with a lawsuit that challenges the Army Corps’ claim to jurisdiction over the land, or whether it must go through a potentially lengthy and expensive permitting process before it could bring a case.

The court, in a 10-page opinion, said Hawkes could bring the challenge now. Chief Justice Roberts said landowners shouldn’t have to wait until the end of the permitting process, which ‘can be arduous, expensive and long.’

“Six other justices joined the chief justice’s opinion, while a seventh, Justice Ruth Bader Ginsburg, joined most of it.

The court rejected arguments by the government that lawsuits shouldn’t be allowed until after the Army Corps brings an enforcement action.”

Today’s article added that, “Hawkes shouldn’t have to assume the risk of criminal and civil penalties while waiting for U.S. regulators ‘to drop the hammer in order to have their day in court,’ the chief justice wrote.”

DTN writer Todd Neeley indicated yesterday that, “With growing concern about potential legal liabilities for farmers when it comes to the Clean Water Act, the ability to question and challenge the Corps when waters of the United States are identified on private land is expected to become increasingly important.”

Mr. Neeley pointed out that, “Farmers and ranchers often face tens of thousands of dollars in fines, long delays in acquiring permits and often are forced to make costly changes to work done on their property without Clean Water Act permits.

“Until now landowners did not have the ability to challenge such jurisdictional determinations in court, or to conduct independent determinations that could in some cases disprove Corps determinations. A final agency action is reviewable through the Administrative Procedures Act only if there are no adequate alternatives to APA review in court.

In concurring with the court’s opinion, Justice Anthony Kennedy expressed concern about the Clean Water Act. Kennedy noted the reach and consequences of Clean Water Act remains a concern. Kennedy cited earlier views from Justice Samuel Alito that the consequences of even inadvertent violations can be crushing to landowners.”

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