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Will SCOTUS Ruling Drown Courts in Clean Water Act Lawsuits?

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By Casey C. Sullivan, Esq. on June 01, 2016 11:57 AM

The Supreme Court made it easier for property owners to challenge Clean Water Act protections yesterday. A unanimous court ruled that a "jurisdictional determination," an agency decision that land contains waters protected by the act, is a final agency action that can be challenged in court.

Will the decision launch an Armada of new CWA lawsuits? Or will it stop the use of jurisdictional determinations altogether?

What Counts as Water Anyway?

The Clean Water Act, one of America's signature environmental laws, seeks to protect "the waters of the United States" by requiring federal permits for any pollutant discharged into those waters. But what counts as "waters of the United States" can be a contentious process. Sure, lakes and rivers are pretty clear. What about seasonal streams? Temporary ponds? Wetlands that drain to other water bodies?

To reduce some of the uncertainty, the government allows land owners to obtain a jurisdictional determination, or JD. JDs are essentially a ruling as to whether the land in question is covered by the CWA permitting process. They are binding on the EPA or the Army Corps of Engineers, the two agencies which administer the act, for five years.

When Is a Determination Final?

In this case, Hawkes Co., a company that sought to mine peat from wetlands in Minnesota sought out a JD, hoping that those wetlands would not fall under the CWA -- and hoping to escape the high costs of the CWA permitting process. When the Corps determined that waters of the United States were present, Hawkes Co sued.

That suit was premature, the Corps argued. Under the Administrative Procedures Act, a party can only challenge a government determination that is final. No actual rights and consequences flow from a JD, thus the determination can't be challenged.

The Supreme Court rejected that argument on Tuesday. Emphasizing the practical impact of the JDs, the Court ruled that such determinations were final under the APA. Not only did JDs mark "the consummation of the agency's decision-making process," they determined real legal rights and consequences. A negative JD finding not waters of the United States, for example, gives a five-year safe harbor from CWA enforcement actions. A positive one does the opposite, denying that protection. And that was enough for the Supreme Court.

The Start of More Litigation or the End of JDs?

The impact of yesterday's ruling remains to be seen. The CWA permitting process can already be a litigious exercise. Today's ruling could make it more so, causing landowners to pursue more JDs and enabling them to bring challenges to Corps determinations earlier in the process, instead of waiting for actual permitting decisions.

At the same time, the JD procedure is not mandated by the CWA. It's offered, somewhat, as a favor to landowners, allowing them a bit more certainty without the cost of full permitting processes. Should the government think that the JDs are now more trouble than they're worth, they could simply stop offering them.

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