The Clean Water Act (CWA) “…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.”
Justices Kennedy, Thomas, and Alito made this point in a Supreme Court decision on May 31 about the overreach of the Corps of Engineers (Corps) and EPA’s administration of the CWA. They went on to say “…based on the Government’s representations in this case, the reach and systemic consequences of the Clean Water Act remain a cause for concern. [Moreover] the Act’s reach is ‘notoriously unclear’ and the consequences to landowners even for inadvertent violations can be crushing.”
The justices also blasted EPA for saying it was not bound by memorandums of agreement with the Corps to which the three justices indicated if EPA were correct, EPA’s “…ominous reach would be unchecked by the limited relief the Court allows today.”
In a truly extraordinary set of opinions in the case of US Army Corps of Engineers v. Hawkes Co. great lawyers for the defense struck a blow against overreaching voracious regulators from the Corps and EPA. The U.S. Supreme Court opinion suggests it found the Corps and EPA’s actions to be incredulous.
The case turned on a narrow legal point of whether a revised jurisdictional determination on what is a wetland was a final agency action. Justice Roberts’ opinion focused on whether or not conditions were met under the Administrative Procedures Act (APA). The APA guarantees an individual certain rights which I will not go into.
The facts of the case are fascinating. Hawkes Co. and other parties in the case are mining companies in Marshall County, Minnesota, where peat is mined. Peat is an organic material generally found in waterlogged grounds such as wetlands and bogs. It can be used for soil improvement purposes and burned as fuel. Justice Roberts, in a humorous aside, said peat can be used to provide structural support and moisture to smooth out and stabilize golf greens ‘…that leave golfers with no one to blame but themselves for errant putts.” Chief Justice Roberts also noted peat mining can have significant environmental and ecological effects. Hawkes Co. and its partners own 530 acres of land near existing mining operations and wanted to mine high quality peat for use on golf greens. In December 2010, Hawkes met with the Corps and was told a CWA application and permit would take many years and cost over $100,000. The Corps demanded Hawkes undertake studies involving a hydrogeologic assessment of the “rich fen system”, study mineral-nutrient composition and pH of the groundwater, ground flows spatially and vertically and on and on and on.
In 2012, the Corps concluded after all of these studies that the peat land contained “water of the United States” and that the peat wetlands had a “significant nexus” to the Red River which was located 120 miles away. Hawkes appealed the Corps’ jurisdictional determination and the Corps on revisiting the issue reaffirmed its conclusion that the peat land was a wetland and a water of the United States. Hawkes and the other companies appealed this decision and it was this decision which was heard by a U.S. District Court and the U.S. Court of Appeals for the 8th Circuit.
The Corps contended that the jurisdictional determination was a not a final agency action and was not subject to a challenge in court. The U.S. Supreme Court found that determination to be laughable. It gets worse! The government declared that even if the Corps determination was final, EPA did have to abide by the jurisdictional determination.
Finding this set of facts unacceptable the Supreme Court sent a message to both agencies, saying “…the Court is right to construe [jurisdictional determination] as binding in light of the fact that in many instances it will have a significant bearing on whether the Clean Water Act comports with due process.”The Justices of the Supreme Court suggested there are some due process Constitutional issues related to the Clean Water Act. Whether the CWA is constitutional is for another case to decide but what is clear is the unacceptable administration of the CWA by the U.S. EPA and the Corps of Engineers. These agencies’ continuing abuse of private property is reflected in the Court saying their actions raise “troubling questions” regarding a private citizen’s use of his/her property.
(Reprinted from Farm Futures on June 6, 2016)