Courts tackling Clean
Water Act abuses, by H. Sterling Burnett, 7/19/16
The
U.S. Supreme Court ruled the North Dakota-based Hawkes Co., which had planned
to mine peat from property in Minnesota, could challenge in court a U.S. Army
Corps of Engineers (Army Corps) ruling declaring the property counted as
“regulated wetlands” without first having to go through the costly process
necessary to obtain a permit to disturb wetlands. The unanimous ruling has been
hailed by property owners, farmers, and businesses across the country as a
significant victory for property owners.
In
1972, Congress passed the Clean Water Act (CWA) as part of its efforts to
ensure the nation’s navigable waterways are safe for commerce, transportation,
and public enjoyment, including fishing and swimming. Though the term
“wetlands” is never mentioned in the rule, by the early 1980s, the
Environmental Protection Agency (EPA) and the Army Corps had asserted
jurisdiction over wetlands adjoining or intermingling with navigable waters—as
well as virtually any other soggy piece of ground, stock pond, drainage ditch,
or intermittent body of water. The EPA often justified its claims by saying
migratory birds might use the waters.
Under
this interpretation of “navigable waters,” the EPA and the Army Corps have
essentially asserted jurisdiction over virtually all of the United States, the
only exception being those areas that are clearly desert.
Not
only did the EPA and the Army Corps claim jurisdiction over land not clearly
connected to navigable waters, they also argued property owners are not allowed
to challenge rulings determining what qualifies as federally protected wetlands
until they go through an extensive application procedure required to fill or
dredge wetlands. That process often lasts more than two years and costs more
than $270,000, with owners facing penalties of up to $37,500 per day for
noncompliance.
When
Hawkes tried to challenge the government’s determination, a trial court said
the case was not ripe for court review because these determinations didn’t
qualify as a “final agency action.” Hawkes appealed the decision multiple
times, earning support from business groups, including the National Association
of Home Builders and the U.S. Chamber of Commerce, as well as 29 states, all of
which filed amicus briefs backing Hawkes.
The
case eventually reached the U.S. Supreme Court, which determined as soon as the
government decides property falls under the Clean Water Act’s jurisdiction,
property owners can immediately contest the claim in court without having to go
through the wetlands permitting process.
Reed
Hopper—principal attorney for the
Environmental Law Practice at the Pacific Legal Foundation, which argued the
case before the Court on behalf of Hawkes—said concerning the ruling, “Today’s
ruling marks a long-awaited victory for individual liberty, property rights,
and the rule of law.
Everyone
who values property rights and access to justice should welcome this historic
victory.” This victory is the latest in a string of cases reining in the
federal government’s attempts to regulate property in illegal ways and often
for illegitimate reasons. Beginning in 2001, the Supreme Court recognized
federal agencies were claiming more power than the law actually grants to them
when it comes to jurisdiction over wetlands. Over the past decade, the Court
has limited the EPA’s authority over non-navigable waters such as isolated and
seasonal wetlands so that the EPA only has power over those non-navigable
waters it can show have a “significant nexus” to navigable waters.
Instead
of taking the Court’s rulings to heart, the EPA decided to go big or go home in
2015; it issued a rule known as the Waters of the United States (WOTUS) rule,
which asserts the federal government has the power to regulate millions of
acres of land and water not covered by the Clean Water Act. It does this by
simply ignoring the word “navigable” as a limit on its authority.
Twenty-nine
states immediately challenged the rule in various federal courts, with
Judge Ralph Erickson of the U.S. District Court for the
District of North Dakota partially nullifying WOTUS hours before it was due to
take effect. Judge Erickson described the Obama Administration’s interpretation
of the Clean Water Act’s jurisdiction as “exceptionally expansive,” and he
determined there was a high likelihood the states would be harmed if his court
didn’t act.
Rather
than being restrained by the court’s action, Obama Administration
representatives defiantly announced that the EPA would enforce the regulation
in much of the United States, arguing Erickson’s ruling only applies to the 13
states under his jurisdiction. However, on October 9, 2015, a nationwide
injunction was issued by the Cincinnati-based Court of Appeals for the Sixth
Circuit, which found EPA’s new guidelines are “at odds” with key Supreme Court
rulings.
Federal
courts should be applauded for finally righting the balance between state and
federal powers and defending freedom and private property against illegitimate
acts made by an out-of-control government.
No comments:
Post a Comment