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Supreme Court Allows Legal Challenges to Decisions under WOTUS Rule

31 May 2016 4:00 PM | Deleted user

Today the United States Supreme Court issued an opinion allowing landowners to immediately challenge jurisdictional determinations made by the Army Corps of Engineers pursuant to the Clean Water Act – colloquially referred to as the Waters of the United States (WOTUS) rule – prior to the conclusion of the permitting process.

The WOTUS rule prohibits “the discharge of any pollutant” without a permit into “navigable waters,” defined as “waters of the United States.” In order to ascertain whether the WOTUS rule applies to an area of land, the Army Corps of Engineers is permitted to perform a “jurisdictional determination.” If the Army Corps determines that a property contains waters of the United States, the WOTUS rule applies and the landowner must obtain a permit prior to developing or utilizing the property.

Chief Justice John Roberts penned the opinion, siding with respondents Hawkes Co. and affirming the Court of Appeals for the Eighth Circuit.

Read the opinion here.

Hawkes Co. sought a permit from the Army Corps in order to harvest peat from wetlands located in the upper Midwest. The Army Corps determined that the wetlands contained waters of the United States, finding a “significant nexus” between the wetlands and the Red River, which is located approximately 120 miles away. The finding triggered a lengthy and costly permitting procedure for Hawkes Co., which, under the WOTUS rule, was allowed to appeal the decision only after the conclusion of the permitting process.

Hawkes Co. filed a lawsuit against the Army Corps of Engineers, alleging that a landowner should be able to immediately appeal a jurisdictional determination in federal court prior to participating in the permitting process.

The eight Justices of the Supreme Court unanimously agreed, holding that a jurisdictional determination is a “final agency action,” and may be immediately appealed.

M. Reed Hopper, legal counsel for Hawkes Co., stated that the ruling “marks a long-awaited victory for individual liberty, property rights and the rule of law.”


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