The Supreme Court on Tuesday made it easier for landowners to challenge the decision of federal regulators that the use of property is restricted by the Clean Water Act.
The justices ruled unanimously that property owners could file suit against the U.S. Army Corps of Engineers over the agency’s determination that their land contains “waters of the United States” covered by the Clean Water Act, which provides criminal and civil liabilities for violations.
The government contended that such suits could be brought only after the landowner filed for a permit and was dissatisfied with the result. Alternatively, the government said, the conflict could be resolved if the owner proceeded without a permit and faced sanctions.
But Chief Justice John G. Roberts Jr. said neither alternative was acceptable. Proceeding without a permit opens owners to penalties of up to $37,500 a day if they are determined to have violated the act.
Individuals and companies “need not assume such risks while waiting for [the Environmental Protection Agency] to drop the hammer in order to have their day in court,” Roberts wrote.
And applying for a permit requires an “arduous, expensive and long” process that is different from challenging whether the land was properly designated, Roberts wrote.
It was the second time in the past several years the court has disagreed with the federal government’s views on when decisions of the Army Corps of Engineers can be challenged.
Three conservative justices wrote separately to say that “the reach and systemic consequences of the Clean Water Act remain a cause for concern.”
The 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,” wrote Justice Anthony M. Kennedy, who was joined by justices Clarence Thomas and Samuel A. Alito Jr.
The Clean Water Act regulates the discharge of pollutants into “the waters of the United States,” which can include wetlands, mud flats and other swampy land that eventually reach other bodies of water.
It can be hard to determine when a particular parcel contains such waters, so the Corps makes a determination — called a jurisdictional determination (JD) — on a case-by-case basis.
The case at hand was brought by three companies engaged in mining peat in Marshall County, Minn.
Peat, Roberts explained, is an “organic material that forms in waterlogged grounds, such as wetlands and bogs,” and its use provided the only light moment in a case that was heavy on the Administrative Procedures Act. Peat can sometimes be used “to provide structural support and moisture for smooth, stable greens that leave golfers with no one to blame but themselves for errant putts,” Roberts said. (In announcing the decision from the bench, he also mentioned that it can be used in the production of whiskey.)
The extraction of peat can have significant environmental impacts, and Hawkes Co. asked for guidance when it wanted to mine the material on a 530-acre tract in Minnesota. Eventually, the Corps issued a JD that said the property contained wetlands that had a “significant nexus” to the Red River of the North, about 120 miles away.
The dispute at the Supreme Court was about whether that JD constituted final agency action and thus was open to judicial challenge. The agency contended it was simply giving landowners advice and that allowing challenges to such determinations would lead to an outbreak of litigation over what the agency considered to be simply a step in the process.
The case is Army Corps of Engineers v. Hawkes Co.