Court Ruling Harmful to Landowners

Swamp Stomp

Volume 16, Issue 50

Earlier this spring, the Supreme Court ruled in favor of landowners.  The ruling meant that landowners could sue the federal government on disputes over federal protected waters.  At the time, this was seen as a major victory from landowners and developers.  Now though, legal experts believe that this ruling will make the permitting process more difficult for developers.

“The 8-0 ruling in Army Corps of Engineers v. Hawkes Co. Inc. gives landowners legal recourse to challenge “approved” jurisdictional determinations, which are formal decisions on whether jurisdictional wetlands are present on a tract of land” (Stecker).

The Supreme Court reasoned that the Army Corps’ approved jurisdictional determinations are “final agency actions” and because of this, when landowners disagree, the ruling becomes subject to legal review.

Contrary to what was thought at the time, some legal experts believe that this could decrease the number of decisions issued by the Army Corps, the agency responsible for making the determinations.  If this occurs, it will cause a delay of big projects and cause costs to go up.

“I think it’s a double-edged sword, that decision,” said Josh Bloom, an environmental attorney with Meyers Nave in Oakland, Calif. “I think it’s a little bit of ‘be careful what you wish for.'”

Before this ruling, the only way to appeal approved jurisdictional determinations was by going through the Army Corps’ administrative process.  What jurisdictional determination states is whether a project needs Clean Water Act and Rivers and Harbors Act permits before it can start.

The difference between approved jurisdictional determinations and preliminary jurisdictional determinations is that approved jurisdictional determinations are legally binding and preliminary jurisdictional determinations are not.

“On the one hand, when the regulated community started reading the opinion, they were happy,” said Andrew Stewart, an attorney with Vinson & Elkins. “On the other hand, when they went through the repercussions of the opinion and the potential to strongly incentivize preliminary [jurisdictional determinations], they weren’t as happy with the outcome.”

Pacific Legal Foundation attorney Reed Hopper, who argued on behalf of the Minnesota peat mining company Hawkes Co. Inc. at the Supreme Court, does not agree that the ruling will cause a decrease in the amount of Army Corps’ approved jurisdictional determinations.

Hopper believes that because most of these determinations are over quickly and without controversy that there is no reason for the Army Corps to slow down their process.

“If they did so, it would be counterproductive for them,” he said. The corps “wants to be able to assert jurisdiction.”

“In most cases, a developer will accept a preliminary determination of jurisdictional waters, which is advisory in nature and only discloses whether jurisdictional waters may be on the property. The developers will then proceed with permitting on the assumption that waters are present or not present.  But for large, complicated projects planned near wetlands, approved jurisdictional determinations are necessary. Approved determinations offer a five-year “safe harbor” of guaranteed certainty that can shield landowners from potential Clean Water Act violations” (Stecker).

The argument used by the Army Corps was that ruling in favor of the mining company would cause them to lead toward issuing preliminary jurisdictional determinations over approved?

Do you agree with the legal experts or Hopper?

Source: Stecker, Tiffany. “High Court Ruling for Landowners a ‘double-edged Sword'” WETLANDS. E&E Publishing, LLC, 1 Nov. 2016. Web. 23 Nov. 2016.