TOPEKA – (June 1, 2016) – The U.S. Supreme Court yesterday unanimously sided with Kansas and decided that the U.S. Army Corps of Engineers cannot shield from judicial review its decision that private property contains “waters of the United States” subject to regulation under the Clean Water Act, Kansas Attorney General Derek Schmidt announced.
The court, in an 8-0 decision, held that an “approved jurisdictional determination” by the Corps, which states the Corps’ definitive view that a parcel of property contains “waters of the United States,” is “final agency action reviewable under the Administrative Procedure Act.” This means that landowners will have greater procedural protections in any determination that their property is subject to federal regulation and to go to court to challenge potentially overbroad assertions of federal jurisdiction by federal agencies.
“This is a significant victory for private property rights and particularly for Kansas farmers and landowners,” Schmidt said. “The Supreme Court agreed with our view that the Corps cannot unilaterally decide whether the Clean Water Act applies to private property. Landowners aggrieved by a Corps determination are entitled to their day in court.”
The underlying lawsuit involved the question of whether the Corps’ approved jurisdictional determination that a property contains “waters of the United States” for purposes of the Clean Water Act is final agency action subject to judicial review under the Administrative Procedures Act. In March, Schmidt joined 22 other state attorneys general in filing an amicus curiae brief supporting the private landowners’ challenge to the Corps’ determination that their property contained “waters of the United States” subject to Clean Water Act regulation.
The State’s brief argued that judicial review of the Corps’ jurisdictional determinations preserves the States’ authority over land and water use and that the Court should interpret final agency action to avoid upsetting the federal-state balance.
Oral arguments in the case, U.S. Army Corps of Engineers v. Hawkes Co., were heard on March 30, 2016. A copy of the decision can be found here: http://1.usa.gov/1P5gGNW .
The State of Kansas is separately challenging the Environmental Protection Agency’s recent vast expansion of what counts as “waters of the United States.” A total of 31 states and numerous private groups have filed 22 separate lawsuits challenging the WOTUS Rule. Kansas is part of a group of 11 states whose challenge was filed in the federal court in the Southern District of Georgia.