The U.S. Supreme Court ruled unanimously on May 31, that a landowner can appeal a determination from the Army Corps of Engineers that a water body is subject to federal jurisdiction and permit requirements under the Clean Water Act through the federal court system.
In his concurrence with Chief Justice John Roberts’ decision, Justice Anthony Kennedy noted that the Clean Water Act “continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.”
In Army Corps of Engineers v. Hawkes Co. Inc., the Court ruled that a property owner can challenge a determination from the Corps immediately upon receipt, rather than wait for enforcement action and risk significant fines. In the case, Hawkes, a Minnesota peat mining firm, argued that the finding of jurisdictional waters on his land effectively bars him from collecting peat on the affected property. National Stone, Sand and Gravel Association (NSSGA) said it welcomed this decision as a positive one for aggregates operations. Often, these determinations are required for permits to expand or open a new facility.
A determination by the Corps or Environmental Protection Agency (EPA) that a body of water falls under the “Waters of the United States” standard means the landowner needs federal permits for any activity that would alter the water body.
The Waters of the U.S. rule, which NSSGA is challenging through a lawsuit and is currently under a nationwide stay, would significantly increase the number of waters subject to Clean Water Act requirements. The key dispute in the Hawkes case was whether a jurisdictional determination carries legal consequences, a necessary component in order for the decision to be a “final” agency action. The Obama administration argued that since new information can change the finding, it is not like final actions, but the Supreme Court disagreed.