AFBF President Zippy Duvall
A unanimous Supreme Court today ruled landowners may challenge the federal government whenever the Army Corps of Engineers tries improperly to regulate land with regulations designed to protect water.
Landowners have attempted many times to challenge Corps rulings known as jurisdictional determinations, but the government successfully argued that those determinations were not “final agency actions” and the lawsuits were dismissed. Now, when the Corps asserts jurisdiction over low spots that look more like land than water, it will have to do so with the knowledge that its jurisdictional determination can be tested in court.
Today’s ruling builds on another unanimous ruling, Sackett v. EPA. The Court today recognized that once the Corps finds that a landscape feature is a “water of the United States,” there are immediate and often dire legal consequences to the landowner. A farmer can continue a farming activity that results in an unlawful discharge and face an enforcement action with civil fines up to $37,500 a day per discharge, or even criminal penalties. Or, the farmer can spend tens, if not hundreds, of thousands of dollars seeking federal Clean Water Act permits over several years only to have the permit ultimately denied.
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