Mining companies want the right to challenge the government over what lands have protected waters — it has the potential to save them hundreds of thousands in permitting fees. On Tuesday, the Supreme Court obliged with US Army Corps of Engineers v. Hawkes Co., ruling that federal determinations of protected waters are subject to judicial review, potentially weakening the government's ability to protect the nation's waters under the Clean Water Act.
The US Army Corps of Engineers is responsible for determining whether a property has "waters of the United States," or "navigable waters" — waters that are protected by the federal Clean Water Act. The corps makes these judgments by issuing jurisdictional determinations, or JDs, which regulate whether property owners need additional permits to use wetlands — processes that can often be long and expensive.
The Supreme Court ruled that USACE-issued JDs can be challenged in court, upholding the US Court of Appeals, which ruled JDs as "final agency actions," or federal agency rulings, which, under the federal Administrative Procedure Act, can be taken up in court.
In USACE v. Hawkes Co., the Corps had determined that mining company Hawkes's Minnesotan property had areas protected by the Clean Water Act, requiring the company to undergo an extensive permitting process to mine the land. Hawkes attempted to challenge the determination, arguing that the judgment would cost the company hundreds of thousands of dollars and should be able to undergo judicial review.
The court agreed, finding 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.
While USACE v. Hawkes Co. was specifically procedural (whether or not JDs are like other decisions from other federal agencies), the Supreme Court's decision has the potential to influence the strength of the Clean Water Act.
When USACE determines that certain properties contain "waters of the United States," owners are then required to undergo lengthy and often expensive permitting processes to use the land; without permits, owners can risk criminal penalties. If owners choose to go through with this process, applications are very rarely rejected.
But at times the process is onerous enough that property owners withdraw, according to University of Wisconsin Madison wetland policy expert Morgan Robertson: "The Corps will say that's the process working — the permit compensating for the impacts."
Because the court determined that JDs are in fact like other federal agency actions, and can be challenged in court, it opens the door for more companies to try to overturn USACE determinations of which waters should be protected and which shouldn't.
The Clean Water Act has long been poked and pushed: There have been nine Supreme Court cases either involving the corps or the Environmental Protection Agency in the past 30 years.
Strategically, there are strong incentives for land developers to repeatedly question the Clean Water Act's procedures, and for the EPA and USACE it's "incredibly threatening, because it is a procedure that has already come under court scrutiny," Robertson said.
In 2006, the Supreme Court split on Rapanos v. United States, which questioned whether a Michigan wetland was protected under the Clean Water Act. Justice Anthony Kennedy, the swing vote in the case, didn't clearly define "navigable waters" or property rights in the case, and the laws since have becomes increasingly vague.
"I have been on these and I have done them," Robertson said of the JD process. "They go out and map what they think is jurisdictionally wetlands. There are all types of moments in there where there are a little bits of negotiation. Anything that increases the pressure on that moment of yea or nay can potentially work in favor of the company."
Whether fighting for the ability to overturn a JD or just having the ability to stall a permitting process, USACE v. Hawkes Co. is simply part of that larger trend.
