The U.S. Supreme Court gave landowners with wetlands on their property a big victory this week. In U.S. Army Corps of Engineers v. Hawkes, Case No. 15-290 (May 31, 2016), the Supreme Court unanimously held that landowners can challenge in court a U.S. Army Corps of Engineers ("Corps") jurisdictional determination ("JD"). This decision gives landowners an important tool in negotiating and resolving conflicts with federal agencies over the extent of wetlands on a property.
Generally, the Corps issues JDs to establish the extent of its Clean Water Act jurisdiction on a particular property over "waters of the United States" - including wetlands. These determinations are important to landowners and developers in making decisions about how a property may be used, farmed, or developed. In the Hawkes case, the Corps had argued that landowners should not be able to challenge these decisions. Instead, the Corps argued, landowners should have to go through a lengthy and expensive permitting process to challenge the Corps' JD, or the landowners could move forward with a project without a permit and challenge the JD if the Corps sought to impose fines or penalties.
The Supreme Court, though, held that these remedies were not adequate and therefore courts must hear challenges to JDs. Chief Justice John Roberts recognized that 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." These consequences, including severe financial penalties for a wrong decision, convinced the Supreme Court that landowners should be able to challenge JDs in court.
As we reported in our April 7, 2016 update, the issues addressed in Hawkes are closely related to a recent final rule defining the term "waters of the United States" for jurisdictional purposes under the Clean Water Act. That rule, known as WOTUS, will likely require permits where they were not previously necessary and will subject more lands to automatic (or "categorical") regulation instead of requiring an intense factual inquiry of whether wetlands are actually connected to regulated waters. A federal court has stayed the implementation of WOTUS until the court is able to make a final decision on the rule's validity. Ultimately, the rule will probably be reviewed by the Supreme Court.
As our team recently wrote in an article published on this topic, WOTUS magnified the importance of Hawkes. Where the fundamental jurisdiction of a federal agency is unclear, due process requires that landowners have a reasonable way to challenge the agency's claim of regulatory jurisdiction. Justice Kennedy mirrored that assessment, writing in a concurrence inHawkes that the Clean Water 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" because it is "notoriously unclear" and "the consequences to landowners even for inadvertent violations can be crushing."
The Supreme Court's decision in Hawkes provides landowners with more power in the process through the ability to challenge inadequate or arbitrary JDs. We have experience assisting landowners in Clean Water Act permitting and litigation, including assessment of JDs. We are continuing to monitor how the Hawkes case and WOTUS will affect ongoing, proposed, and future projects in Florida. Please contact our team should you have any questions.