The US Supreme Court ruled today that federal courts can immediately review challenges to the US Army Corps of Engineers' determinations on regulated waterways, a move that could make it easier for developers to contest Clean Water Act decisions.
The opinion in US Army Corps vs. Hawkes Co. delivered by chief justice John Roberts upheld an April 2015 decision by the 8th US Circuit Court of Appeals that federal jurisdiction decisions are final and therefore open to immediate judicial review. Six justices joined Roberts in the decision, while Justice Ruth Bader-Ginsburg concurred in part.
The ruling is considered a win for developers, who have had to engage in the permitting process and then seek an administrative appeal on corps' determinations before approaching the federal courts. It also could significantly expand challenges to federal water oversight. The corps has applied its definition of federally covered waters to 270mn-300mn acres of wetlands, Roberts said in his opinion.
Landowners should not have to wait out an "arduous, expensive and long" permitting process to challenge the corps' determination on whether a waterbody is subject to federal oversight, Roberts said.
"It is often difficult to determine whether a particular piece of property contains waters of the United States, but there are important consequences if it does," Roberts said. While property owners can start development without a permit, they risk significant civil penalties if the permit is ultimately denied. Companies should not have to take that chance while waiting for agencies "to `drop the hammer' in order to have their day in court."
The corps said it is reviewing the court's decision and its potential impacts.
M. Reed Hopper, principal attorney at the Pacific Legal Foundation, which represented Hawkes in the case, said the ruling "marks a long-awaited victory for individual liberty, property rights, and the rule of law."
Hawkes had wanted to mine peat from a property in northwestern Minnesota. But the corps determined in February 2012 that the area was a water of the United States because of its "significant nexus to the Red river." Hawkes disagreed, and the eighth circuit court of appeals ruled last year that the cost, risk and delay of immediate judicial review essentially prohibited the company from using the land without the corps "having to test whether its expansive assertion of jurisdiction" was consistent with earlier court rulings.
The property Hawkes was seeking to develop is 120 miles from the Red river.
"We are now guaranteed the right to appeal to the courts against the corps' jurisdictional wetlands decision," said Hawkes vice president Kevin Pierce.
A number of companies and organizations had filed amicus briefs with the courts on behalf of Hawkes, including the National Mining Association, the American Petroleum Institute and the Utility Water Act Group.
Senator John Barasso (R-Wyoming) said justices should build on the momentum of this case and "strike down the entire waters of the US rule."
