Landowner wins case against Army Corps in WOTUS case | TheFencePost.com

Landowner wins case against Army Corps in WOTUS case

THE NCBA

WASHINGTON – Landowners recently scored a victory when a federal district court ruled against the Army Corps of Engineers for incorrectly claiming jurisdiction over private property. The Corps had claimed a piece of property owned by Hawkes Company, and used by Hawkes to harvest peat, was a "waters of the United States" which requires a federal dredge and fill (404) permit under the Clean Water Act.

In March 2016, the National Cattlemen's Beef Association filed an amicus brief with the U.S. Supreme Court to support Hawkes' private property rights and argue that jurisdictional determinations should be reviewable by courts. In a resounding victory, the Supreme Court ruled unanimously in favor of Hawkes, setting a precedent that landowners may challenge the Corps' jurisdictional determinations. The case was then remanded back to the district court for a final decision on the facts, which found the Corps failed to prove that a WOTUS was present on Hawkes' land.

"This week's district court decision is the cherry on top of a significant legal victory for landowners," said Scott Yager, NCBA environmental counsel. "This case highlights the subjectivity of how the agencies determine the presence of a WOTUS. It also gives landowners the option to use the courts for impartial review when confronted with questionable WOTUS determinations. Before Hawkes, the Corps had a rubber stamp on WOTUS determinations."

The Hawkes case involved three companies engaged in mining peat in Minnesota. Due to the difficulty inherent in determining the need for a 404 permit, the Corps allows property owners to obtain a jurisdictional determination if a particular piece of property contains a WOTUS and therefore requires a 404 permit before using the land. Upon receiving an approved jurisdictional determination that their land did contain a WOTUS, the companies exhausted the administrative remedies available and then filed suit in Federal District Court challenging the Corps' jurisdictional determination.

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"Not only is the Hawkes decision a significant victory itself, it adds to the momentum of getting the flawed WOTUS rule fixed" Yager said. "NCBA is litigating the WOTUS rule, lobbying Congress, and working closely with the new administration to roll back this flawed rule." ❖

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