Landowners Win at U.S. High Court on Wetlands Development

Landowners Win at U.S. High Court on Wetlands Development

(Bloomberg)—The U.S. Supreme Court gave landowners a new avenue to challenge some federal regulatory decisions affecting their property rights, in a case that three conservative justices said raised troubling questions about government overreach.

The 8-0 ruling said landowners can go straight to court after federal regulators decide that a piece of property containing wetlands is covered by the Clean Water Act. The ruling is a blow to the Obama administration and a victory for property-rights activists, potentially streamlining the approval process for people and companies seeking to develop wetlands.

The ruling came in a dispute over a proposed peat-mining operation on 530 acres in Minnesota. The property owners and a mining company, Hawkes Co., are fighting a decision by the U.S. Army Corps of Engineers that the land is subject to federal regulation.

U.S. appeals courts had been divided on whether that type of decision can be challenged immediately in federal court. The Obama administration said a landowner can’t sue until a permit application is rejected or the owner faces a federal enforcement action for proceeding without a permit.

‘Important Consequences’

Writing for the court, Chief Justice John Roberts pointed to the "important consequences" of the Corps decision, which he said is binding on both the Corps and the Environmental Protection Agency for five years. Roberts said the permitting process "can be arduous, expensive and long," while proceeding without a permit would invite fines as high as $37,500 a day and even criminal liability.

In a separate opinion, three conservative justices said the case underscored concerns about the reach and consequences of the Clean Water Act.

The law "continues to raise troubling questions regarding the government’s power to cast doubt on the full use and enjoyment of private property throughout the nation," Justice Anthony Kennedy wrote for himself and Justices Clarence Thomas and Samuel Alito.

The ruling marks the second time in four years that the justices have unanimously given landowners more power to go to court with disputes over the application of the Clean Water Act.

Land is subject to the Clean Water Act if it contains wetlands connected to a river, lake or other major waterway. Under the law, property owners may ask the Corps whether their land meets that test before deciding whether to apply for a permit.

The case is Army Corps of Engineers v. Hawkes Co., 15-290.

To contact the reporter on this story: Greg Stohr in Washington at [email protected] To contact the editors responsible for this story: Craig Gordon at [email protected] Laurie Asseo, Elizabeth Wasserman


© 2016 Bloomberg L.P

Hide comments


  • Allowed HTML tags: <em> <strong> <blockquote> <br> <p>

Plain text

  • No HTML tags allowed.
  • Web page addresses and e-mail addresses turn into links automatically.
  • Lines and paragraphs break automatically.