Water, Water, Clean Water Act, Everywhere

The key paragraph from an article discussing recent oral arguments at the Supreme Court on the Clean Water Act, a case called U.S. Army Corps of Eng’rs v. Hawkes Co., Inc:

“The oral argument focused on whether the Corps jurisdictional determination meets the second condition of the Supreme Court’s test for identifying final agency action in Bennett v. Spear, 520 U.S. 154 (1997) – namely, whether the agency action determines rights or obligations or gives rise to legal consequences. Malcolm Stewart of the Department of Justice argued that the Corp’s opinion regarding whether certain land contains jurisdictional waters does not constitute final agency action because “it does not order any person to do or refrain from doing anything and does not alter anyone’s legal rights and obligations.” Several members of the Court appeared unconvinced, questioning whether the Corps treats the jurisdictional determination as binding. Mr. Stewart argued the determination is not binding on the landowner, who is free to disregard the Corps’ view and conduct the dredging activities. Chief Justice Roberts noted such course of action would be “a great practical risk.” Mr. Stewart responded that the other alternative is for the landowner to seek a permit. Justice Ginsburg replied that the permit process is “very arduous and very expensive.” Justice Breyer later summed up the alternatives:

One, spend $150,000 to try to get an exception and fail, or two, do nothing, violate it, and possibly go to prison. Those sound like important legal consequences that flow from an order that, in respect to the Agency, is final, for it has nothing left to do about that interpretation. And [] is perfectly suited for review in the courts.”

This case bears watching, given its implications for any and every farm and ranch with a puddle within its fences.

By the way, if you’re interested in listening to the oral argument in this case, go to Oyez.org, the place for watching, er, listening to the Supreme Court in action. I count it as one of life’s little pleasures.

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