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MEET THE AUTHORS
Tampa
jcremer@stearnsweaver.com
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Special thanks to William J. Anderson, who co-authored the article discussed in this update. William is a law clerk in the Tallahassee office and is a third-year Juris Doctor Candidate at Florida State University College of Law.
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IMPORTANT RECENT DEVELOPMENTS IN THE FEDERAL REGULATION OF WETLANDS
The federal regulation of wetlands - and its effects on ongoing and future projects - are increasingly uncertain and evolving quickly. Landowners and the development community should know about two important recent developments.
Within the past week, the U.S. Supreme Court held oral arguments in an important case that may give landowners with wetlands onsite an additional tool for challenging federal jurisdiction over those wetlands. In U.S. Army Corps of Engineers v. Hawkes, Case No. 15-290 (2015), the Supreme Court is poised to decide whether a landowner can challenge in court a U.S. Army Corps of Engineers ("Corps") determination of the extent of its jurisdiction (a "JD") over wetlands on a property. Previous cases had ruled that landowners could only challenge a JD by (1) bringing a lawsuit after denial of an expensive and time-consuming permit, or (2) moving forward without a permit and challenging the JD if the Corps sought to impose fines or penalties. In this case, however, the appellate court below held that landowners can challenge a JD in court immediately because it is the consummation of the Corps' decision-making process and it implicates a landowner's legal rights and obligations. At oral argument, a majority of the justices appeared very skeptical about the Corps' attempt to limit judicial review of a final agency action.
The other recent development relates to the final rule defining "waters of the United States" for jurisdictional purposes under the Clean Water Act that was released last year by the Corps and the U.S. Environmental Protection Agency ("EPA"). This rule, known as WOTUS, will give landowners less flexibility in determining whether their lands are truly subject to federal jurisdiction and will likely require permits where they were not previously necessary. WOTUS sparked a host of lawsuits challenging it. Since we last reported in our August 26, 2015 update, these challenges have resulted in injunctions halting the implementation of the rule nationwide. Federal appellate courts are still weighing the ultimate merits of these cases, and it is possible the U.S. Supreme Court will weigh in on the issue.
The uncertainty of WOTUS has magnified the importance of the Hawkes case because both issues relate directly to the extent of federal regulation of private property. For a more detailed analysis of the Hawkes case, the WOTUS litigation, and their implications for landowners, please see the article below prepared by our team members, which was published by the Environmental and Land Use Section of the Florida Bar.
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