Yesterday, the U.S. Supreme Court upheld the ability of landowners to legally challenge U.S. Army Corps of Engineers determinations on whether a body of water on private property is considered “Waters of the United States” (WOTUS). If a water is determined to be WOTUS, then it is subject to the federal Clean Water Act (CWA). The CWA requires a costly permitting process if any pollutant is discharged into WOTUS.
U.S. Army Corps of Engineers v. Hawkes arose when the corps made the determination that wetlands on a property containing peat mines were WOTUS, due to its connection with a river 120 miles away. The companies who owned the land in question sought to challenge the determination in court.
The court ruled that landowners have the ability under federal law to seek judicial review of the determination before having to seek a CWA permit. This decision prevents companies from having to slog through the burdensome permitting process only to have a court rule that their property contains no WOTUS and therefore does not require a permit.
The Ohio Chamber of Commerce filed an amicus brief with the Supreme Court in this case, urging the justices to protect businesses by ensuring access to judicial review of regulatory decisions.
Separately, due to the U.S. Environmental Protection Agency’s (EPA) expanded WOTUS definition, even small bodies of water must now comply with the CWA. The Ohio Chamber continues to oppose the EPA’s expanded WOTUS definition and is actively monitoring related litigation, including a current nationwide stay of the rule’s enforcement.