The U.S. Supreme Court ruled Tuesday federal courts do have the authority to review determinations from the Army Corps of Engineers concerning wetlands and whether they are subject to the Clean Water Act regulations.
Many consider it a win for landowners who argued their abilities were limited in challenging the Corps decisions. It was a unanimous ruling in which the justices upheld the Eighth circuit’s ruling that jurisdictional determinations by the Corps are final agency actions that can be reviewed by courts under the Administrative Procedure Act.
The jurisdictional determinations often regulate whether property owners need more permits to use wetlands but acquiring such a permit is a long and expensive process. What the high court ruled was that the determinations can be challenged in court. The original case involved challenge by Hawkes Company in Minnesota which had property in area protected by the Clean Waters Act. The Corps determined the company would be required to undergo an extensive permitting process to mine the land but Hawkes argued it should be able to undergo judicial review. An appeals court agreed and found that because the clean Water Act “imposes substantial criminal and civil penalties for discharging any pollutant into waters covered by the Act without a permit from the Corps, it should allow the checks and balances provided by a judicial review.
Some believe Tuesday’s ruling has the potential to weaken the Clean Water Act because it might open the door for more companies to try and overturn Corps determinations.