Supreme Court Issues Wetlands Decision

In a recent unanimous decision, the U.S. Supreme Court ruled that courts should be able to review federal government decisions that determine if and how a property owner can develop a piece of land so the owner isn’t required to go through the federal permit process before a decision can be made.

The court ruled in Army Corps of Engineers v. Hawkes Co. Inc. that when the government conducts a Clean Water Act jurisdictional determination (JD) to determine if “waters of the United States” – including wetlands – are located on the property, the site’s landowners can contest the decision in court.

Aronoff, Rosen & Hunt managing partner Richard Paolo said he believes this ruling is a victory for property owners and the firm’s real estate clients. “This is a common-sense ruling that enables property owners to assert their rights if they disagree with the government’s ruling.”

“Before, our attorneys could only contest the ruling in court after either obtaining or being denied a wetlands development permit for our clients. This is a costly and time-consuming process. Without such a permit, clients would risk severe Clean Water Act penalties,” Paolo said.

The National Association of Home Builders has maintained for 25 years that property owners should be able to take Clean Water disputes immediately to court. NAHB chair Ed Brady said in a statement that the ruling “will allow property owners to be able to dispute a JD in court without first seeking a permit that they believe is not required in the first place.”

Chief Justice John Roberts wrote the opinion for the court, and Justice Anthony Kennedy wrote in a concurring opinion that the Clean Water Act “continues to raise troubling questions regarding the government’s power to cast doubt on the full use and enjoyment of private property throughout the nation.”

What The Decision Means

Judicial determinations are important because it’s impossible for a developer to know whether a feature is jurisdictional by looking at it. Once the Army Corps issues a determination, however, it carries serious legal and financial consequences ranging from lending practices to state rules and regulations. The Supreme Court’s decision enables a more efficient, less costly means of disputing a determination.

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