CWA Challenge Upheld

Ruling Seen as Victory for Landowners

Todd Neeley , DTN Staff Reporter
For years, farmers and ranchers across the country have faced Clean Water Act penalties for a variety of alleged violations, without having the ability to challenge agency wetland determinations. (Photo courtesy of Wikimedia Commons)

OMAHA (DTN) -- Though recent U.S. Supreme Court decisions have made it clear landowners have the right to challenge Clean Water Act determinations by federal agencies, a district court ruling in Minnesota is the first time a landowner has successfully challenged a determination.

In May 2016, the high court ruled in Army Corps of Engineers v. Hawkes that property owners have the right to challenge Corps wetlands jurisdiction determinations.

This week, the defendants in that case won a key court victory in the U.S. District Court for the District of Minnesota, when that court ruled the Corps did not provide site-specific evidence in the case to prove work on the Hawkes Company peat-moss ground in northwest Minnesota would have an effect on downstream navigable waters.

What's more, the district court said in its ruling the state of Minnesota already does a good job regulating such operations.

"Accordingly, the proper remedy here is to set aside the revised JD (jurisdictional determination) as arbitrary and capricious, and to enjoin the Corps from asserting jurisdiction over the wetlands," the court said in its ruling this week.

"This conclusion is not reached lightly, as the court is aware that peat mining can have significant impacts on the environment. However, peat mining and processing is regulated in Minnesota through permits issued by the Minnesota Department of Natural Resources, thereby ensuring that plaintiffs' peat mining operations will not go unregulated or unchecked."

Pacific Legal Foundation environmental attorney Reed Hopper, the winning attorney in the Supreme Court case, said although the Trump administration is taking aim at cutting federal regulation, he believes the Corps and the U.S. Environmental Protection Agency will continue to push landowners.

The Supreme Court ruled last summer that wetlands determinations are considered to be final agency actions. This means they are subject to challenge in the Administrative Procedures Act.

"The government will continue to overreach, and landowners will have to stand their ground in a court of law," Hopper told DTN. "The administration would certainly like to eradicate EPA and Corps abuse of the Clean Water Act, but it remains to be seen if that view filters down to the regulators in the field."

Hopper said the district court ruling is important because it shows the Supreme Court decision made a difference.

"Landowners really can challenge jurisdictional determinations in court," he said. "The Supreme Court decision made the Hawkes win possible in the trial court. It shows that the government can be beat when an objective decision-maker (like a judge) reviews agency determinations. It shows that the government really does engage in illegal conduct under the Clean Water Act and why judicial review of JDs is essential to protect property rights."

For years, farmers and ranchers across the country have faced Clean Water Act penalties for a variety of alleged violations, without having the ability to challenge agency determinations.

Hopper said the district court ruling shows landowners are no longer at "the sole mercy of the government anymore. They have a weapon now -- court oversight.

"The decision sets a precedent that the Corps and EPA must provide site-specific evidence of federal jurisdiction. They can't just assert jurisdiction without proof."

In 2010, Hawkes applied for a permit with the Corps to expand the mining operation. In an initial jurisdictional determination, the agency ruled the company's operation was part of a 591-acre wetland complex that "flows through a man-made ditch, then into an unnamed seasonal tributary, then to the Middle River, and ultimately to the Red River," the court ruling said.

In the Hawkes case, the Corps originally ruled it has CWA jurisdiction on 150 acres of wetlands 40 aerial miles from the Red River.

The company wanted to expand its mining operation by about 150 acres. This would require the discharge of fill materials onto wetlands. Although the Corps of Engineers could grant a permit for the project, it can refuse such a permit if there is a significant nexus between the wetland and navigable waters.

According to the district court's ruling, a Corps official ruled the agency had not provided site-specific information. Yet the Corps declared the wetlands would affect navigable waters.

The significant nexus test fails if a wetland's effect on water quality is speculative or insubstantial, according to the court's ruling.

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @toddneeleyDTN

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