Last month, the U.S. Supreme Court agreed to hear an appeal from a decision by the U.S. Court of Appeals for the Eight Circuit that Clean Water Act (CWA) Jurisdictional determinations (JDs) are subject to immediate judicial review.
In Hawkes v. Army Corps, the Eighth Circuit had ruled that a Minnesota property owner’s challenge to the Corps’ jurisdictional determination that the site contained jurisdictional wetlands could be challenged in federal court before a CWA permit was obtained or an enforcement action was brought. Under the Corps regulations, a property owner must appeal a JD from the Corps district to the relevant Corps Division office before the action would be final.
Even then, the Justice Department had successfully argued in multiple cases that such a JD could not be challenged in federal court until the applicant either obtained a CWA 404 permit or was sued for discharging into a Water of the United States without obtaining a permit.
The Ninth and Fifth Circuits had agreed with the Government ruling that an appeal of a JD was not ripe for review because the JD was not an agency action by which “rights or obligations have been determined“ or from which “legal consequences will flow.”
In Hawkes, the Eight Circuit disagreed with the other two circuit decisions, holding that the Corps JD “alters and adversely affects appellants right to use their property in conducting a lawful business activity.” The Court also held that the two remedies suggested by the Government for seeking review of the JD were not adequate. The Court stated that “as a practical matter, the permitting option is prohibitively expensive“ and proceeding ahead in the face of a Jurisdictional Determination without obtaining a permit “would expose [Hawkes] to substantial criminal monetary penalties and even imprisonment for a knowing [Clean Water Act] violation.”
In so holding, the court followed its 2012 ruling in Sackett v. U.S., holding that landowners are entitled to immediate judicial review of EPA issued compliance orders. In granting review, the Court will resolve the conflict in circuit court rulings.
The Supreme Court’s decision to take this case will have profound implications for landowners, especially in light of the highly contentious “ Waters of the United States” (WOTUS) rule. Issued by EPA and the Corps in April 2014, that rule broadly defines the geographic reach of CWA jurisdiction to cover ephemeral and intermittent tributaries a great distance from traditional navigable waters.
Thirty-one states, industries, property rights groups, local governments and water agencies have challenged the rule. These challenges are pending in several district courts and courts of appeals. Even if the WOTUS rule is overturned, landowners would still have to comply with Corps and EPA guidance issued in response to the 2006 Supreme Court Rapanos decision that still asserts CWA jurisdiction over large areas of the landscape.
Should the Supreme Court rule in favor of Hawkes, landowners who disagree with a JD broadly asserting jurisdiction would have another basis to contest JDs that they feel were erroneously issued. That prospect would arguably provide landowners with leverage in the JD process and lessen the chance that the Corps will issue JDs that do not have a sound basis under the law.
Hawkes will be briefed and argued in 2016 and a decision is expected by June.
Dawson & Associates will continue to follow developments in this important case.
Lawrence R. Liebesman, Esq. Senior Advisor
A nationally recognized environmental lawyer with more than 35 years of experience, including 11 years at the U.S. Justice Department, Larry specializes in federal Clean Water and Endangered Species Acts and the National Environmental Policy Act (NEPA).
The views expressed here are those of the author and do not necessarily reflect the views of Dawson & Associates.