Earlier this month, the U.S. District Court of Minnesota invalidated a wetlands jurisdictional determination by the Army Corps of Engineers that purported to subject land owned by a peat farming business to federal regulation.
This ruling follows two major Supreme Court breakthroughs declaring that compliance orders and wetlands jurisdictional determinations under the Clean Water Act constitute final agency action that a landowner may immediately challenge in federal court.
The January 2017 trial court ruling out of Minnesota reflects the new era of due process ushered in by unanimous Supreme Court decisions in Sackett vs. EPA (holding that a citizen may challenge a compliance order in a court of law before being exposed to ruinous fines) and more recently in U.S. Army Corps v. Hawkes, the peat farming case (holding that jurisdictional determinations may also be immediately challenged in court).
On remand in Hawkes, the Minnesota federal trial court found the Army Corps failed to demonstrate that a “significant nexus” existed between the wetlands on private property and navigable waters of the United States. The landowner is still subject to state regulation of the contemplated peat farming activities in wetlands, but the federal permitting is not required.
Absent this meaningful judicial review when federal jurisdiction is asserted, landowners like the Hawkes family had been confronted with a difficult choice among evils: abandon the project for which land was acquired, proceed with exposure to potentially ruinous fines and prosecution; or undergo a costly process to obtain a permit that may not have been legally required.
Now, landowners who question whether their property has the required connection to navigable waters can require a federal agency to prove the basis of its jurisdictional assertion before facing that untenable exposure.
This is really good news we wanted to share with Gunster clients and friends of the firm. Anyone interested in learning more, please contact Gunster environmental law practice leader Luna Phillips by calling 954-712-1478.
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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.
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