Good News For Landowners

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 U.S. Army Corps of Engineers v. Hawkes.

A unanimous court concluded that private landowners may challenge a federal agency's conclusion that a given piece of land is subject to regulation under the Clean Water Act (CWA) once such a "jurisdictional determination" has been made. With this ruling, the court handed private landowners a small but significant victory.

   

 

 Under the CWA, it is illegal to "discharge" a "pollutant"

into the "waters of the United States" without a federal permit.

 

-These terms are defined quite broadly, so that the deposit of soil, dirt or

clean fill may constitute the "discharge" of a "pollutant." This means that
a private landowner who seeks to build on his or her property, perhaps by
building a home, must obtain a federal permit if (and this is the key part)
that land is considered part of the "waters of the United States." How would
a piece of land be considered "waters"? Because the federal government has
defined the "waters of the United States" to include wetlands. If such lands
are sufficiently connected to other waters, such as rivers and streams, they
are subject to the CWA's permitting requirements.

For an individual landowner, it is not always clear whether a given piece of
land is subject to the CWA regulation. For this reason, landowners may seek
a jurisdictional determination from the federal government (specifically,
the U.S. Army Corps of Engineers), in order to find out whether federal
regulators believe a permit is required. If the Army Corps says "no," then
the landowner is in the clear (at least under the CWA). If the Corps says
"yes," then the landowner must obtain a permit before, say, placing fill on
the property.

Under today's decision, a jurisdictional determination is a final agency
action that is subject to judicial review. This is because once the Army
Corps determines that a given parcel is subject to regulation under the CWA,
it has reached a final conclusion about its jurisdiction, and this decision
has clear consequences. If the Corps concludes it has no jurisdiction, the
landowner can be sure the he or she will not risk federal prosecution for
developing the property without a permit. If the Corps concludes it does
have jurisdiction, then the landowner knows that developing the property
without a permit is, in the view of the agency, illegal. Further, the court
concluded, once an affirmative jurisdictional determination has been made, a
landowner has no meaningful alternative to judicial review to contest the
agency's decision.

What this means, in practical terms, is that landowners have greater ability
to determine whether their property is subject to federal regulation and to
challenge potentially over broad assertions of jurisdiction...

Chief Justice John Roberts wrote the opinion for the court. Three other
justices wrote concurrences: Justice Anthony Kennedy (joined by Justices
Samuel Alito and Clarence Thomas), Justice Ruth Bader Ginsburg and Justice
Elena Kagan.

Kennedy's concurrence stressed that even with the court's decision (and its
prior decision in Sackett, which I discussed here
<http://volokh.com/2012/03/21/thoughts-on-sackett-v-epa/>  and here
<http://volokh.com/2012/09/07/sackett-v-epa-and-the-due-process-deficit-in-e
nvironmental-law/> ), the application of the CWA to private property
"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."

See the full ruling here 

UNITED STATES ARMY CORPS OF ENGINEERS v. HAWKES CO., INC., ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 15–290. Argued March 30, 2016—Decided May 31, 2016 


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