Supreme Court Deals Setback To Obama Water Policy

The Supreme Court dealt a blow to the Obama administration last month in a major water pollution case.

The court ruled “that a landowner can appeal through the federal court system a determination from the Army Corps of Engineers that a water body is subject to federal jurisdiction and permit requirements under the Clean Water Act,” The Hill reported.

The justices unanimously decided in U.S. Army Corps of Engineers v. Hawkes Co. that the Army Corps’s decision could be challenged just like any other agency regulation, affirming the previous judgment of the Court of Appeals for the Eighth Circuit.

The government had argued that such a decision is not a “final agency action” and that, “even if it were, there are adequate alternatives for challenging it in court. We disagree at both turns,” the court opinion stated.

The company, Hawkes, had wanted to mine peat, which is found in wetlands, from land in northwestern Minnesota. But the U.S. Army Corps of Engineers found that the land was protected by the Clean Water Act from possible pollution, meaning that the property owner would need a permit. Hawkes challenged the government on the need for these costly permits.

“The central dispute in the Supreme Court’s case was whether a jurisdictional determination carries legal consequences, a necessary component in order for the decision to be a ‘final’ agency action. The Obama administration argued that since new information can change the finding, it is not like final actions,” The Hill reported.

“Chief Justice John Roberts wrote in the ruling that when the government decides a property falls under the Clean Water Act's jurisdiction, property owners can contest that finding in court. Previously, they could challenge that determination only at the end of the permitting process, which can last two years and cost up to $270,000, with owners facing penalties of up to $37,500 a day for noncompliance,” Reuters reported.

The case could have far-reaching implications for federal water policy.

In fact, it is “likely to have consequences for the federal government’s entire enforcement of the Clean Water Act, the main law regarding pollution control,” The Hill reported.

The Corps and the U.S. EPA share enforcement authority over water pollution for waterways that are part of the “waters of the U.S.” standard, according to The Hill.

“That determination means the landowner needs federal permits for any activity that would pollution or otherwise harm the water body,” the report said.