Right Hooks

Bogged Down in Water Regulation

A potentially landmark case limiting the reach of the Army Corps of Engineers.

Political Editors · Mar. 31, 2016
Photo courtesy Andy F, Wikimedia Commons

The Supreme Court heard oral arguments Wednesday for a potentially landmark legal case limiting the reach of the U.S. Army Corps of Engineers and its zealous interpretation of the Clean Water Act. U.S. Army Corps of Engineers v. Hawkes Co revolves around a peat farm operated by the Pierce family near the North Dakota-Minnesota state line. The Pierces drain bogs and scrape up the peat to sell to golf courses and football stadiums. As Kevin Pierce explained in a video, laying down peat creates a cushion on swaths of grass that will experience heavy use. It also reduces the amount of water it takes to hydrate said grass.

When the company tried to use a property in nearby Minnesota for its peat-harvesting operation, the U.S. Army Corps of Engineers swooped in. Bogs are wetlands, wetlands feed into navigable waterways, and therefore, the Pierce’s peat bog was under the corps’ purview because it somehow affected the Red River, which lies 120 miles away. Sure, the Corps has jurisdiction over navigable waterways in the United States, but good luck piloting a boat through a peat bog. Recently, the Corps and the EPA tried to extend their power so that they control bodies of water as small as a ditch. The Pierces were yet another family affected by agency overreach.

But there was little they could do. They could cave to the Corps’ demands, they could navigate the red tape and apply for a costly permit, or they could use the property anyway and risk major fines. The Pierces couldn’t take the Corps to court to challenge its determination, so the Supreme Court will decide whether the Corps is above legal challenge.

During the oral arguments, both liberal and conservative justices expressed skepticism over the Corps’ arguments. For example, Justice Ruth Bader Ginsburg described the permitting process “arduous and very expensive.” The Pacific Legal Foundation, which is representing the Pierces before SCOTUS, say the amicus briefs from think tanks, businesses — even 29 states — have joined the Pierces’ petition to the Supreme Court, none in support of the Corps. It seems this part of the environmental regulatory deluge is coming to an end.

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