THE biggest concern for landowners regarding the Clean Water Act (CWA) is expanding federal jurisdiction on private property.

Waters got murkier with a recent U.S. Supreme Court opinion written by Justice Anthony Kennedy in the unanimous decision on the Army Corps of Engineers vs. Hawkes case.

Specifically, the Hawkes case focuses on whether landowners may challenge the federal government whenever the Army Corps of Engineers tries improperly to regulate land with regulations designed to protect water.

Due to the difficulty inherent in determining the need for a 404 Dredge & Fill Permit, the Corps allows property owners to obtain a stand-alone jurisdictional determination if a particular piece of property contains a "water of the U.S." and, therefore, requires a 404 permit before they can use the land.

Upon receiving an approved jurisdictional determination that their land did contain a water of the U.S., the companies involved in the case 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 Environmental Protection Agency 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," National Cattlemen's Beef Assn. president Tracy Brunner said. "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."

Future indicator

Pacific Legal Foundation principal attorney M. Reed Hopper, who successfully argued the Hawkes case in front of the justices, said the decision does nothing about the scope of the CWA but "simply levels the playing field so landowners, for the first time in 40 years, get their day in court."

However, Hopper did say it provides some insight into how the justices might vote if EPA's waters of the U.S. rule — currently being challenged in lower courts — finds its way to the high court. With the death of Justice Antonin Scalia, many wondered if there were enough conservative votes on the Supreme Court's bench to overturn the rule.

EPA used Kennedy's opinion and call for a "significant nexus" test as the basis for its current water rule. During the Rapanos case in 2006, Kennedy said CWA's jurisdiction reached waters and wetlands with a significant nexus to actual navigable waters, and he took the broad view that it could mean ecological connections beyond just the hydrological connections.

Hopper called the significant nexus test the "root of all evil" in the water rule as it tries to justify EPA's expanded jurisdiction.

During oral arguments in the Hawkes case, Kennedy noted his frustration with the breadth of the CWA as well as its constitutional vagueness.

In his concurrence, he expressed the court's concern with the CWA in that it "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."

Kennedy started his opinion by saying the "reach and systemic consequences of the Clean Water Act remain a cause for concern." He went on to agree with Justice Samuel Alito's opinion stating that the law's reach is "notoriously unclear" and that the consequences to landowners, even for inadvertent violations, can be crushing.

Hopper is certain that the full court will take up the waters of the U.S. challenge; it's just a matter of when and how the liberal justices will rule. Still, Kennedy's opinion offers insight into how he may vote — or at least how opponents of the water rule hope he votes.

Volume:88 Issue:06