This blog follows an article Michael Rikon wrote which was published in the New York Law Journal on August 26, 2016.
Wetlands are areas saturated by surface or ground water sufficient to support distinctive vegetation adapted for life in saturated soil conditions. The New York State Department of Environmental Conservation regulates two main types of wetlands, tidal wetlands along Long Island, New York City and up the Hudson River, and freshwater wetlands found on river and lake flood plains across the State.
But wetlands may also be regulated by the U.S. Army Corps of Engineers under Section 404 of the Clean Water Act.
Landowners now have a right to seek direct judicial review when their property is designated as wetlands subject to federal jurisdiction under the Clean Water Act. The act makes it unlawful to discharge dredged or fill material into “navigable waters” without a permit. The Clean Water Act authorizes the United States Army Corps of Engineers to regulate certain discharges to “navigable waters,” or “waters of the United States.” The term “navigable waters” has been variously defined by the Corps but the United States defined the term recently in Rapanos v United States, 547 US 715 (2006). In Rapanos, the plurality defined “navigable waters” as Traditional Navigable Waters (capable of use in interstate commerce) and non-navigable but relatively permanent rivers, lakes and streams as well as abutting wetlands with a continuous surface water connecting to Traditional Navigable Waters. As a result, under the definition in Rapanos, federal jurisdiction over wetlands was reduced. This article is about a recent United States Supreme Court decision which allowed a property owner to directly challenge federal jurisdiction rather than follow an unnecessary and expensive administrative challenge first.
The Army Corps issues jurisdictional determinations on a case-by-case basis that specify whether property contains waters of the United States. In Army Corps of Engineers v Hawkes Co., 578 US ___, 136 S. Ct. 1807 (2016), the Army Corps issued a formal approved jurisdictional determination concluding that there was a “significant nexus” between property owned by the Hawkes Company and the Red River of the North. The property was located in Marshal County, Minnesota. The property was over 120 miles from the nearest Traditional Navigable Water. There was no continuous surface water connection between wetlands on the property and a “water of the United States.”
Hawkes challenged the approved jurisdictional determination or wetlands delineation under the Administrative Procedure Act, but the district Court ruled it could not exercise subject matter jurisdiction because the jurisdictional determination did not constitute “final agency action.” The United States Court of Appeals for the Eighth Circuit reversed the district Court’s ruling, and the Supreme Court of the United States granted certiorari to review the case.
In a decision by Chief Justice Roberts, the Court disagreed with the Army Corps’ contentions and held that the definitive nature of approved JDs give rise to “direct and appreciable legal consequences.” It held that the Corps itself describes approved JDs as “final agency action.” The Court also noted that parties need not await enforcement proceedings before challenging final agency action where such proceedings carry the risk of “serious criminal and civil penalties.” The Court affirmed the Eighth Circuit holding that it was proper to assert a right to judicial review under the APA. In a concurring decision, Justice Kagan stated that the memorandum of agreement between the Army Corps of Engineers and the Environmental Protection Agency is central to the disposition of this case. She stated that for an agency action to be final, “the action must be one by which rights or obligations have been determined or from which legal consequences flow.” Bennett v Spear, 520 US 154 (1997). The memorandum of agreement establishes that jurisdictional determinations are “binding on the government and represent the government’s position in any subsequent federal action or litigation concerning the final determination.”
In a brief concurrence by Justice Kennedy, joined by Justices Thomas and Alito, it was stated, “the reach and systemic consequences of the Clean Water Act remain a cause for concern.” It was suggested that the Clean Water Act might not “comport *** with due process.” Justice Kennedy had earlier filed a concurrence in Rapanos v United States, 547 US 715 (2006).