Supreme Court rules landowners can dispute Waters of the U.S. wetland designations

Nikki Work

Landowners concerned about the ramifications of the controversial Clean Water Act heard good news this week when the U.S. Supreme Court unanimously ruled wetland determinations can be challenged in court.

According to the Supreme Court ruling May 31, the Clean Water Act regulates pollution discharge into any water deemed a “water of the United States,” or any navigable waterway and its tributaries, which are defined by flowing water. During the time period relevant to the Supreme Court case — called U.S. Army Corps of Engineers v. Hawkes Co. — the definition also included all wetlands, though there have been several attempts to redefine the rule and exempt these areas.

Though the process to determine a water of the U.S. is often complicated, once the U.S. Army Corps of Engineers designates a wetland, if a landowner discharges any pollutants into it, they are at risk for civil and criminal liabilities.

The problem comes in when landowners — or mining companies in the example of the Supreme Court case — are in disagreement with the Army Corps about what wetland is. This ruling makes it so parties in opposition can challenge water designations. According to Chief Justice John Roberts’ written opinion, there were not adequate opportunities for adjudication before the ruling.

The American Farm Bureau Federation applauded the decision, and the federation’s president Zippy Duvall said a roadblock — one that kept landowners from judicial relief against illegal action — has been removed.

“Now, farmers and ranchers can have their day in court when the government tells them they cannot plow a field or improve a ditch without a federal permit,” Duvall said in an agency news release.

In March, 23 state attorneys general filed an amicus curiae brief in support of the landowners in the case, including those from Kansas, Montana and Wyoming. Kansas Attorney General Derek Schmidt released a statement after the decision Thursday, calling it a victory for private property rights and Kansas farmers and landowners.

“The Supreme Court agreed with our view that the Corps cannot unilaterally decide whether the Clean Water Act applies to private property,” Schmidt said in a release. “Landowners aggrieved by a Corps determination are entitled to their day in court.”

The state of Kansas — along with 31 other states — is also suing the Environmental Protection Agency for expanding the definition of a water of the United States. Twenty-two separate lawsuits have been filed against the WOTUS rule by both states and private groups, according to a news release from the Kansas attorney general’s office. These states include Colorado, Wyoming, South Dakota, North Dakota, Montana and Nebraska.

Sen. John Barrasso, R-Wyo., released a statement after the May 31 decision in agreement with the ruling, but also said it was just the first step toward protecting farmers and ranchers in the U.S.

“Families and small businesses across the country shouldn’t have to fight Washington just to use their own property,” he said in a news release. “Now the Supreme Court should go one step further and strike down the entire Waters of the United States rule before more Americans are strangled by this unprecedented Washington water grab.” ❖


Stay with The Fence Post for more on Waters of the U.S. as the rule trickles through the governmental pipeline.