The NCSL Blog

31

By Lisa Soronen

The U.S. Supreme Court does not (yet) have the issue of whether the new regulations defining “waters of the United States” exceed the Environmental Protection Agency (EPA) authority.

SCOTUS ruling on waters case; photo credit: The HillIn the meantime, in United States Army Corp of Engineers v. Hawkes the court ruled unanimously that an approved jurisdictional determination that property contains “waters of the United States” may be immediately reviewed in court.

The State and Local Legal Center (SLLC) filed an amicus brief in this case arguing in favor of this result.

Under the Clean Water Act, “waters of the United States” (WOTUS) are federally regulated. Property owners may seek an approved jurisdictional determination (JD) from the U.S. Army Corp of Engineers definitively stating whether such waters are present or absent on a particular parcel of land.

Three companies wanted to mine peat from wetland property in Minnesota. The Corp issued an approved JD that the property contained WOTUS because its wetlands had a “significant nexus” to a river located about 120 miles away.

Under the Administrative Procedures Act, judicial review may be sought only from final agency actions. Per Bennett v. Spear (1997), agency action is final when it marks the consummation of the agency’s decision making process and when legal consequences flow from the action.

The court, in an opinion written by Chief Justice John Roberts, concluded that an approved JD is a final agency action subject to court review because it meets both conditions laid out in Bennett.

The Corp didn’t argue that an approved JD is tentative; its regulations describe approved JDs as “final agency action” valid for five years. Approved JDs give rise to “direct and appreciable legal consequences,” the court reasoned, because the Corp is bound by them for five years.

And a “longstanding memorandum of agreement” between the Corp and EPA binds the EPA. So under an approved JD, the two agencies authorized to bring civil enforcement proceedings under the Clean Water Act, practically speaking, grant or deny a property owner a five-year safe harbor from such proceedings.
 
The SLLC amicus brief pointed out states and local governments would be negatively affected as landowners and partners with the business community responsible for economic development and capital infrastructure planning if judicial review of JDs is not possible.

The court agreed that neither alternative to judicial review is adequate. Proceeding without a permit could lead to civil penalties of up to $37,500 a day; seeking a permit can be “arduous, expensive, and long.”

Interestingly, in three separate concurrences (each about a page long) Justices Anthony Kennedy, Clarence Thomas, Samuel Alito, Elena Kagan, and Ruth Bader Ginsburg debate whether an approved JD really is binding on EPA and whether it matters. Kennedy warns that if it isn’t, “the act’s ominous reach would again be unchecked by the limited relief the court allows today.” In light of this discussion, the Corp and EPA are likely to clarify the nature of their agreement.    

The Council of State GovernmentsNational Association of CountiesNational League of CitiesUnited States Conference of MayorsInternational City/County Management Association, and the International Municipal Lawyers Association joined the SLLC amicus brief which was written by Foley & Lardner attorneys Joe Jacquot, Linda Benfield, Richard Still, Michael Leffel, and Sarah Slack.  

Lisa Soronen is the executive director of the State and Local Legal Center and writes frequently for the NCSL blog about the U.S. Supreme Court.

 

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.