The Clean Water Act is an issue of gathering significance with the Environmental Protection Agency and adoption of a newly defined “waters of the United States” (“WOTUS”), wherein civil and criminal penalties can attach if pollutant is discharged into jurisdictional waters. Thus, whether water is defined as “jurisdictional” becomes an important significance. On May 31, 2016, the U.S. Supreme Court issued a ruling in United States Army Corps of Engineers v. Hawkes Co., Inc., et al., regarding Clean Water Act (“CWA”) application and the regulatory jurisdiction of the United States over water resources.
In the lawsuit, three peat mining companies sought a permit from the Army Corps of Engineers to discharge certain material into a wetland. The companies sought a “jurisdictional determination” from the Army Corps of Engineers stating that the property was jurisdictional under the Clean Water Act. Disagreeing with the determination, the companies sought review of the determination under the Administrative Procedure Act, appealing the determination to Federal District Court. The Federal District Court dismissed the matter, holding that a jurisdictional determination is not a “final agency action” allowing the right of an appeal to the Court.
Upon review by the U.S. Supreme Court, the Court overturned the lower court, and found that a jurisdictional determination is in fact a final agency action and judicially reviewable. While this ruling does not affect the current stay of the newly adopted rule governing the definition of WOTUS, it does shed light on procedure and available remedies should water be found to be jurisdictional, where a permit application disagrees.
This decision is overall good news for those seeking to comply under the Clean Water Act, and where the EPA and Corps may overstep their bounds in finding certain water to be jurisdictional. Any determination of jurisdiction is reviewable in Federal Court, where an individual can properly assert and provide evidence that certain water is in fact not jurisdictional. In any event, this decision sparks the beginning of likely a long line of cases pending around the country relating to the CWA’s jurisdictional reach.
For the full text of the case, please visit http://www.supremecourt.gov/opinions/15pdf/15-290_6k37.pdf.
