September 15, 2016
Decision from Earlier this Year May Be a Ray of Hope
By Mort Goldfein, Counsel
For property owners who feel overburdened by regulation, Army Corps of Engineers v. Hawkes Co., No. 15-290 (decided May 31, 2016) may offer a ray of hope. While the case involved a somewhat abstruse set of facts regarding the jurisdiction of the US Army Corps of Engineers (ACOE) to regulate wetlands under the Clean Water Act, it does send a signal that the Court has its limits in ceding discretion to land use regulatory agencies.
At issue was a determination that mining peat on a tract of land in rural Minnesota constituted discharging fill material into "waters of the United States"—here a remote tributary of the Red River some 120 miles away.
Wetlands regulation has been a source of much controversy, particularly in urban and suburban areas such as our region where developers have been subject to the same sort of environmental strictures as are in force in "the country." For more than 20 years, ACOE, an agency created to build bridges and ports, has been forced by litigation fostered by environmental groups, to adopt a broad view of its jurisdiction and, in effect, apply a veto to projects otherwise acceptable to state and local authorities. Certainly, this was not an objective of Congress when it approved the Clean Water Act in the 1970s.
In Hawkes, for the first time in recent memory, the entire Court has found a limit to ACOE's assertion of its authority. While some see the decision as narrow, I think otherwise. Here, a unanimous Supreme Court has drawn a line—which suggests that a well-presented argument against overreaching by government agencies can be successful.
Property owners heretofore discouraged from seeking development approvals should take another look as the tide may be shifting on overly burdensome regulations.
About the author: Mort Goldfein is Counsel at the firm and his nearly 50 year legal career includes work on environmental law and regulations while he served as Deputy Attorney General of New Jersey, as well as serving as chief counsel for one of the region's largest real estate developers. He may be reached at: mgoldfein@wilkauslander.com or 212-981-981-2313.