For property owners and developers, the question of whether property contains a wetland regulated by the U.S. Army Corps of Engineers has generated substantial litigation. The Clean Water Act prohibits the discharge of dredge and fill material into navigable waters and wetlands, unless the discharge is permitted by the Corps. Therefore, a determination that a property contains a regulated wetland will subject the property owner seeking to build on, or develop, that property to a rigorous and expensive permitting process. Now a property owner, with the support of the National Association of Home Builders (NAHB) has asked the Supreme Court to decide whether a decision by the Corps, that a property contains a wetland, is a final determination that can be appealed under the Administrative Procedure Act.
In Hawkes Co. v. U.S. Army Corps of Eng’rs, 782 F.3d 994 (8th Cir. 2015), the property owner Hawkes Co. sought a permit, in 2010, to mine 530 acres of land in Minnesota for peat. The Corps made an initial determination that it has jurisdiction over Hawkes’ property because it includes 150 acres of wetlands with a significant connection to navigable waters. Hawkes then challenged the Corps’ decision in U.S. District Court arguing that the wetlands do not have a significant connection to navigable waters. The District Court ruled that it could not review the Corps’ jurisdictional finding because it was not a final agency action. The Eighth Circuit federal court of appeals reversed the District Court, holding that the District Court could review the Corps’ decision on jurisdiction. Because other federal appeals courts had rule that such a decision is not reviewable, the Corps petitioned the Supreme Court to review the case and resolve the dispute between the federal circuit courts.
Hawkes is getting support from the NAHB. In an amicus brief filed with the high court, the NAHB argued that the permitting process is very expensive for property owners because they must hire consultants to help them. Therefore, allowing property owners to challenge initial jurisdictional rulings by the Corps may save property owners thousands of dollars, according to the NAHB. Hawkes also requested that its case be consolidated with an appeal out of the Fifth Circuit on the same issue, in Belle Co. el al. v. U.S. Army Corps of Engineers, 761 F.3d 383 (2014).
Jurisdiction and Permitting under the Clean Water Act
Section 404 of the Clean Water Act (33 U.S.C. Section 1311) prohibits the discharge of dredged and fill materials into waters of the United States. A key jurisdictional issue in Hawkes’ case and many other cases involving wetlands is whether the wetlands can be considered waters of the United States. Generally, courts have ruled that wetlands are waters of the United States if they have a significant connection with navigable bodies of water.
If mining activity like that proposed by Hawkes would discharge material into navigable waters or wetlands, then the property owner must obtain a permit for the activity from the Corps. To obtain the permit, the property owner must show that it has taken action to avoid adverse effects on wetlands and navigable waters, that any potential adverse effects of its actions have been minimized, and that it will provide compensation for all unavoidable adverse effects of its actions.
Philadelphia Environment Lawyers at Michelman & Bricker, P.C. Help Property Owners Understand the Permit Process
Philadelphia environmental lawyers at Michelman & Bricker, P.C. represent individuals and businesses in state and federal courts and before regulatory agencies. We have more than 30 years of experience handling environmental issues and litigation. We have a deep understanding of environmental law, the legal process and system as a whole, and how to protect our clients. We put that knowledge and experience to work for you.
We have previously represented property owners and developers in claims by state and federal agencies alleging that our clients improperly discharged into wetlands. We have represented the owner of commercial property against claims that wetlands had been improperly filled and that stormwater had been improperly discharged into them, and obtained the dismissal of federal and state citizen suit claims seeking millions of dollars in civil penalties and attorneys’ fees under the New Jersey Environmental Rights Act. We also represented a developer against the EPA’s claims that he had destroyed wetlands by excavating land to build a pond, and settled these claims for a $100 civil penalty after demonstrating that the property had not been a regulated wetlands area.