The U.S. Supreme Court unanimously held, on May 31, that property owners may bring court challenges to determinations that their properties are subject to the Clean Water Act. The case is U.S. Army Corps of Engineers v. Hawkes Co., Inc. The BILD Foundation appeared in the case as an amicus curiae, in a brief written by Briscoe Ivester & Bazel LLP, in support of the right of property owners to bring these kinds of court challenges.
The Clean Water Act has been interpreted to prohibit filling certain waters or wetlands without a permit from the U.S. Army Corps of Engineers, under threat of imprisonment or fines of up to $37,500 per day. But not all waters or wetlands are regulated by the Clean Water Act. Under the most frequently cited test, spelled out by Justice Anthony Kennedy in the Supreme Court’s 2006 Rapanos case, water or wetland must have a “significant nexus” to the “chemical, physical, and biological integrity” of real navigable waterways, such as the Sacramento River, to be regulated.
Obtaining Clean Water Act permits can be difficult, and can take years and cost a small fortune. (The Rapanos decision cited a study that found that permits take an average of 26 months and $271,000 to obtain.) So the Army Corps established a procedure to issue “jurisdictional determinations”, at an early stage in the process, that give its formal decision on whether a property contains waters or wetlands regulated by the Clean Water Act.
Jurisdictional determinations frequently apply the wrong legal standard, or reach conclusions that are not based on the evidence. When they do, property owners have long sought to be able to challenge jurisdictional determinations in court. Until the Hawkes case, however, they have not been able to do so.
BILD’s amicus curiae brief was the only amicus brief in the case to argue that being able to challenge jurisdictional determinations in court would add needed clarity to the otherwise potentially unconstitutionally vague Clean Water Act. At oral argument, Justice Kennedy made headlines for picking up on this argument, and suggesting that the Act may be “unconstitutionally vague.”
Chief Justice Roberts, in a short and workmanlike unanimous opinion in Hawkes, wrote that jurisdictional determinations may indeed be challenged in court. But Justice Kennedy wrote a concurrence, joined by Justices Thomas and Alito, which made more headlines for again asserting that the Clean Water Act may be unconstitutional and raises “troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.”
After the Rapanos case, the Army Corps and EPA crafted a new regulation on the scope of jurisdiction under the Clean Water Act—the “WOTUS Rule”—specifically tailored to appease Justice Kennedy. His concurrence in Hawkes, however, echoes the concern of many businesses and property owners that the Government may still be going too far.