The Regulation That Drastically Infringes Landowners’ Rights

On March 30, the Supreme Court heard arguments in U.S. Army Corps of Engineers v. Hawkes Co. This case is one of a collection of land use cases that trickle into the Court from time to time, all representing the same problem: The Clean Water Act drastically limits the rights of landowners to build or develop on land that constitutes “waters of the United States” (WOTUS). Unfortunately, the term “waters of the United States” is left undefined. This leads to what, in many cases, appears to be “interpretation via whim” by the U.S. Army Corps of Engineers—the agency tasked with issuing regulations to implement the Clean Water Act. The Corps of Engineers regulations are notoriously ambiguous, complex, and expensive to comply with. According to one study, obtaining a permit costs an average of $270,000 and takes more than two years. The regulations themselves stretch the imagination in terms of what constitutes a “wetland.” Just consider some of the more absurd scenarios that have been litigated over the years. More...