Supreme Court Hears Challenge To Clean Water Act Permit Process

Date: March 31, 2016 Last Edit: April 01, 2016

Small Business Challenges Process To Appeal Federal Wetlands Designation

On Wednesday the Supreme Court heard arguments in the case Army Corps of Engineers v. Hawkes, which involves a small business in Minnesota that alleges “it has no effective means to contest a decision from the Army Corps of Engineers that a peat bog is off limits to mining under the Clean Water Act,” the AP reports. The company wanted to challenge the off-limits status of the bog in Federal court, but Obama officials said the company “must first go through a costly agency permitting process that could take years to resolve.” This left the company with the choice of either a $150,000 expense for an exception to allow it to use the bog, or ignoring the bog’s off-limits status, a choice that would mean “risking hefty fines and even prison.” Supreme Court justices during Wednesday’s hearing “seemed likely to make it easier for private landowners to challenge in court a government designation of property as protected federal wetlands,” the AP says, with “most justices” appearing “sympathetic to the company.” In one example, Justice Stephen Breyer said government “determination that the land falls under the Clean Water Act has legal consequences that can be reviewed in court.” However, Justice Department attorney Malcolm Stewart contended that the Army Corps of Engineers’ “was more like informal agency guidance that has no legal effect.” Bloomberg Politics reports that Justice Ruth Bader Ginsburg on Wednesday called the current government argument that “a landowner can’t sue until a permit application is rejected or the owner faces a federal enforcement action for proceeding without a permit” a “very arduous and very expensive” process. Ginsburg along with other justices appeared to be indicating that “the Corps’ so-called jurisdictional determination was a significant enough event that an immediate appeal made practical and legal sense.”

What This Means For Small Businesses

Small businesses often face costly, time-consuming government red tape when trying to start and grow their businesses. This latest case challenging the Federal permit process under the Clean Water Act is important for small businesses, as a victory for the business in this case could make the process of contesting Federal land decisions easier for small businesses.

Additional Reading

Reuters also covers the case.

Note: this article is intended to keep small business owners up on the latest news. It does not necessarily represent the policy stances of NFIB.

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