Supreme Court Sets Clean Water Act Precedent

Published on Mon, 06/06/2016 - 3:02pm

By Tracy Brunner, NCBA President

In late May, the Supreme Court in United States Army Corps of Engineers v. Hawkes Co., Inc., set a precedent that landowners may challenge the Corps’ jurisdictional determination specifying that a piece of property contains a “water of the United States.” The National Cattlemen’s Beef Association filed an amicus brief in support of Hawkes and the Court’s decision is a major victory for landowners across the country.

The Hawkes case involved three companies engaged in mining peat in Minnesota. Due to the difficulty inherent in determining the need for a 404 Dredge and Fill Permit, the Army Corps allows property owners to obtain a standalone jurisdictional determination if a particular piece of property containing Waters of the United Stataes (WOTUS) and therefore requires a 404 permit before using the land.

Upon receiving an approved jurisdictional determination that their land did contain a WOTUS, the companies exhausted the administrative remedies available and then filed suit in Federal District Court challenging the Corps’ jurisdictional determination. The government argued that such a jurisdictional determination was not final agency action and that landowners would have to either discharge without a permit and then challenge EPA enforcement or apply for a permit and challenge the outcome.

This case highlights the issues landowners and land-use stakeholders have with the Clean Water Act. Neither of the options provided to landowners are realistic under the current regulatory environment. Applying for a 404 permit is expensive, exhaustive and time consuming. Gambling on EPA enforcement and risking civil and criminal penalties is foolish. This case strikes a balance that at least gives us some measure of regulatory certainty in the notoriously unclear Clean Water Act.

Given the subjective nature of a determination and the inconsistent application of the Clean Water Act, knowing what is or is not a WOTUS was ripe for challenge. The ability to challenge a determination before going through the time-consuming and costly permitting process, or gambling on EPA enforcement provides a measure of fairness to landowners. In his concurrence, Justice Kennedy expressed the Court’s continued concern with the Clean Water Act, “The 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.”

While this case was not directly connected to our pending suit against EPA over WOTUS, it is part of producer’s frustration with the vague and overreaching nature of the EPA and Army Corps. It is part of the regulatory train wreck. NCBA is committed to continuing its WOTUS lawsuit on behalf of its members.

Tracy Brunner is the NCBA President and 4th generation on his family operation located in Ramona, Kansas. He has served as president of his family corporation since its inception in 1988. Tracy manages the feedyard and the yearling grazing operation. He also oversees the cattle and grain marketing decisions, commodity risk management, customer relations, and financial reports. Tracy’s family also operates a seed stock enterprise raising bulls and replacement heifers for many ranchers throughout the U.S.