The Swamp Stomp

Volume 16, Issue 14

This past Thursday, (March 31) the Pacific Legal Foundation presented a case to the United States Supreme Court (United States Corps of Engineers v. Hawkes). This is an important case because it is has a direct relationship for getting jurisdictional determinations of wetlands. The main focus of the case is whether jurisdictional determinations (JD) are final agency actions and thus appealable in court.

Up to this point jurisdictional determinations could only be challenged through the permitting process or in an enforcement action. Historically, jurisdictional determinations could not be challenged and the landowner would have to go through an expensive review process in order to challenge the extent of wetlands on their property.

The Hawkes case is precedent-setting largely because there are no permits involved at this point. The Hawkes Company provides peat for golf courses and other sports turf applications. There are two other organizations also enjoined in this case namely Pierce Investment and LPF properties which also own some peatland in Minnesota.

Mr. M. Reed Hopper of the Pacific legal foundation has stated, “this is a case that affects millions of property owners across the country who face the potential of having their property designated as ‘waters of the United States.’  “Everyone who questions a wetlands jurisdictional determination should have the right to go to court to make their case.  So this is a case about property rights, it’s a case about the rule of law, it’s about fairness and it’s a case about whether jurisdictional determinations under the Clean Water Act should get immediate judicial review.”

So why is this case important to us?  At issue is the importance of what a jurisdictional determination means. In the Hawkes case it is fairly evident that the peatlands are wetlands at least from an ecological perspective. However, the issue of whether these are “waters of the United States” wetlands and theretofore subject to regulation is in question.

The Hawkes peatlands are more than 100 miles from a traditional navigable waterway. Using the US Army Corps of Engineers jurisdictional determination guidance that arose from the Rapanos case in 2006 it is debatable if these peatlands are jurisdictional. The important test be be addressed is if there is a significant nexus to a traditional navigable waterway. Given the distance it seems unlikely.  However, the Corps has ruled that there is therefore they are jurisdictional.

Using the new Clean Water Rule interpretation of waters United States it is likely that these peatlands would be jurisdictional. Under the “old rules”, the US Army Corps of Engineers has declared them jurisdictional. It is for this reason that the JD is being challenged. The Corps maintains that jurisdictional determinations are not challengeable in a court of law because they are not final agency actions.

If the Supreme Court decides that the jurisdictional determination process is a final agency action then anyone who disagrees with a Corps interpretation of wetlands can bring it before a judge. If the court determines that jurisdictional determinations are not a final agency action then the extent of wetlands can only be challenged as it is currently done through the permit process or in an enforcement action.

The Corps of Engineers is not under any obligation to provide jurisdictional determinations outside of a permit process or agency enforcement action. They only provide JD’s when they can and at their discretion.  There if no fee for a JD nor is there any set time-frame that they Corps must comply with like there are for permits.  Consequently, if the court sides with Hawkes it is unlikely that we will ever see a jurisdictional determination again. It is unfortunate that this may be the case as it is often good planning to establish where wetlands are so as to avoid them. However, one can see the the position Corps would be in and opening itself up for innumerable court cases just for issuing an unfavorable JD.

Furthermore, if this case goes for the Hawkes this could expand the role of the private wetland consultant. Many consultants now perform wetland delineations for the sole purpose of identifying wetlands so that they may be avoided. This is often capped with a request from the Corps of Engineers for a jurisdictional determination. However, if a jurisdictional determination cannot be obtained in a reasonable time-frame or ever, applicants would need to proceed “at risk.” This is currently occurring in many areas where demand for JD’s exceeds the Corps ability to process them.  This  underscores the need for a qualified wetland investigator so as to avoid future enforcement actions as a result of a disputed wetland determination.

The biggest issue that may arise from this case goes back to what makes a water a “waters of the US.”  To date there is no clear answer to this.  We sill await the 6th Circuit Court ruling on the 2015 Clean Water Rule that speaks directly to this.  Without a clear and consistent definition of what is a jurisdictional water any wetland delineation can be challenged in court with the end result of every single one of them ending up before the Supreme Court.  Assuming of course that you have an extra $100K or more to go there.  However, at the end of the day we still do not get an answer because as Justice Alito stated in the 2012 Sackett v. EPA case, “Real relief requires Congress to do what it should have done in the first place: provide a reasonably clear rule regarding the reach of the Clean Water Act.”

We expect to hear from the Supreme Court sometime in June and will be watching this case closely.