In Significant Decision, Supreme Court Grants Landowners More Rights in Wetlands Cases

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In a rare 8-0 unanimous decision, the Supreme Court today ruled that Army Corps of Engineers’ wetlands determinations can be challenged in court.  Chief Justice Roberts delivered the opinion of the Court, in which Kennedy, Thomas, Breyer, Alito, Sotomayor and Kagan joined.  Three separate concurring opinions were filed by Kennedy, Kagan and Ginsburg.  The decision in U.S. Corps of Engineers v. Hawkes can be found here.  Here’s an excerpt from the opinion:

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. The Clean Water Act imposes substantial criminal and civil penalties for discharging any pollutant into waters covered by the Act without a permit from the Corps. The costs of obtaining such a permit are significant. For a specialized “individual” permit of the sort at issue in this case, for example, one study found that the average applicant “spends 788 days and $271,596 in completing the process,” without “counting costs of mitigation or design changes.”  Even more readily available “general” permits took applicants, on average, 313 days and $28,915 to complete.  [citations omitted]

The Court rejected the Government’s argument that a jurisdictional determination is not a final agency action subject to judicial review.

Even if final, an agency action is reviewable under the APA only if there are no adequate alternatives to APA review in court. The Corps contends that respondents have two such alternatives: either discharge fill material without a permit, risking an EPA enforcement action during which they can argue that no permit was required, or apply for a permit and seek judicial review if dissatisfied with the results. Neither alternative is adequate. As we have long held, parties need not await enforcement proceedings before challenging final agency action where such proceedings carry the risk of “serious criminal and civil penalties.” If respondents discharged fill material without a permit, in the mistaken belief that their property did not contain jurisdictional waters, they would expose themselves to civil penalties of up to $37,500 for each day they violated the Act, to say nothing of potential criminal liability. Respondents need not assume such risks while waiting for EPA to “drop the hammer” in order to have their day in court.

In a one-page concurring opinion, Kennedy, joined by Alito and Thomas, stated:

The following observation seems appropriate not to qualify what the Court says but to point out that, based on the Government’s representations in this case, the reach and systemic consequences of the Clean Water Act remain a cause for concern. As Justice Alito has noted in an earlier case, the Act’s reach is “notoriously unclear” and the consequences to landowners even for inadvertent violations can be crushing.