June 6, 2016
The US EPA uses its broad powers under the Clean Water Act to designate, essentially, any soil that is merely wet as “waters of the United States” and thus subject to its regulatory reach.
They then enhanced their enormous procedural advantage by preventing property owners from challenging that designation unless (i) the landowner filed for and was denied a permit or (ii) if the owner was sanctioned ($37,500 per day in potential penalties) for proceeding without a permit. The hurdles the agency erected to challenging its regulatory reach was really shameless.
Of course, both of those obstacles to standing created an impossible choice whereby the owner either exposed himself to crippling fines or waited through an interminably long process.
Fortunately, last week the United States Supreme Court unanimously ruled that the property owner does not need to mount these bureaucratic hurdles in order to challenge an over-reach of a designation of a “water of the United States.”
Chief Justice John Roberts authored the decision that found that Plaintiffs “need not assume such risks while waiting for [the Environmental Protection Agency] to drop the hammer in order to have their day in court.”.