The Supreme Court on Tuesday ruled unanimously against the Obama administration regarding water pollution permits. In Army Corps of Engineers v. Hawkes Co., the Justices ruled that property owners could file suit through the Federal Court system against a determination by the U.S. Army Corps of Engineers that their land contains “waters of the United States.” Under the Clean Water Act, that determination makes any given body of water subject to federal jurisdiction and permit requirements for any activity that would pollute or otherwise harm that body of water.
The Clean Water Act regulates the discharge of pollutants into the “waters of the United States” that can include wetlands, mud flats and other swampy land that eventually reach other larger bodies of water. The U.S Army Corps of Engineers and the U.S. Environmental Protection Agency have dual enforcement authority for water pollution, but only if the water at issue falls under the “waters of the United States” standard. It can be problematic to determine when a particular piece of land contains such waters, so the Army Corps of Engineers makes a jurisdictional determination on a case-by-case basis.
The federal government maintained that such suits could be brought only after the landowner filed for a permit and was dissatisfied with the end result of the permit process. Alternatively, the government said, any such conflict could be resolved if the land owner proceeded without a permit but faced sanctions.
Chief Justice John Roberts said neither alternative was acceptable. Proceeding without a permit opens land owners to penalties of up to $37,500 a day if the owner is determined to have violated the Clean Water Act. Individuals and companies “need not assume such risks while waiting for the Environmental Protection Agency to drop the hammer in order to have their day in court,” Roberts wrote. And applying for a permit requires an “arduous, expensive and long process that is different from challenging whether the land was property designated,” Roberts wrote.
Three conservative justices wrote separately saying that “the reach and systemic consequences of the Clean Water Act remain a cause for concern.”
The case was watched closely by opponents of the rule and of the Obama administration’s environmental agenda, who saw the case as a key way to fight against executive overreach and in favor of property rights.
