WOTUS hits a welcome dry spell (Editorial)

(June 21, 2016) In the imbedded vernacular of the federal government, they are known as WOTUS — Waters of the United States.
They are defined by the CWA, the Clean Water Act, and are under the administration of the EPA, the Environmental Protrection Agency.
In this discussion, it is also useful to know that JD stands for “jurisdictional detemination” and APA for Administrative Procedure Act.
In 2010, the Hawkes Co., Inc. was interested in purchasing a piece of land in northern Minnesota to mine high-quality peat.
Hawkes applied to the Army Corps of Engineers and the Minnesota Department of Natural Resources for a permit.
The Clean Water Act requires landowners to get a permit to discharge dredged materials into “navigable waters” to disturb what is judged to be wetland. However, there is still a vast uncertainty about what are “navigable waters” that are subject to the CWA.
Therefore, before a project is commenced, the Corps can give a landowner a “jurisdictional determination” to assess whether, in its opinion, a piece of property is subject to the CWA.
But what happens if the Corps determines that a piece of property is subject to the CWA but the landowner wants to challenge the Corps’ determination?
So, after the Corps issued a JD that the Hawkes Company’s land was subject to the CWA, the company filed an action with the federal district court in Minnesota challenging the determination. Hawkes’ long legal battle had begun.
The Corps arued that the land was a wetland connecting to “waters of the United States,” and filed an apporoved JD to support its authority.
The court dismissed the action and held that the jurisdictional determination was not a “final agency action” under the APA, and therefore it was not subject to judicial review.
The U.S. Court of Appeals for the Eighth Circuit, however, held that the jurisdictional determination was a final agency action and remanded the action for judicial review.
The Hawkes Co, carried its appeal to the U.S. Supreme Court where, on May 31, 2016, six years after Hawkes had sought a permir for the peat mining project, the high court ruled unanimously that landowners may challenge the federal government whenever the Army Corps of Engineers tries improperly to regulate land with regulations designed to protect water.
Now, when the Corps asserts jurisdiction over low spots that look more like land than water, it will have to do so with the knowledge that its jurisdictional determination can be tested in court.
“Today’s decision removes a huge roadblock that has prevented landowners from obtaining relief from the courts when the Corps illegally claims their land is federally regulated water,” AFBF President Zippy Duvall said. “Now, farmers and ranchers can have their day in court when the government tells them they cannot plow a field or improve a ditch without a federal permit.”
The magnitude of the high court’s findings cannot be over-estimated.
The court recognized that once the Corps finds that a landscape feature is a “water of the United States,” there are immediate and often dire legal consequences to the landowner. A farmer can continue a farming activity that results in an unlawful discharge and face an enforcement action with civil fines up to $37,500 a day per discharge, or even criminal penalties. Or, the farmer can spend thousands of dollars seeking federal Clean Water Act permits over several years only to have the permit ultimately denied.
The perils of WOTUS, its potential impact on American farmers, its seemingly outrageous assertions that a small pond in a pasture after a heavy rain constitutes “waters of the U.S.,” appear to be substantially diminished. Let’s hope so.