Advancing Judicial Review of Wetlands and Property Rights Determinations: U.S. Army Corps of Engineers v. Hawkes

ABSTRACT:

This Article analyzes recent U.S. Supreme Court decisions that enhance procedural protections for landowners alleging that stringent federal regulatory determinations threaten their Takings Clause rights. It uses as a focus the Court’s 2016 decision in U.S. Army Corps of Engineers v. Hawkes, involving the justiciability of “approved jurisdictional determinations” under the Clean Water Act. The Article reviews the practical difficulties resulting from the Corps of Engineers and Environmental Protection Agency’s sweeping definition of “Waters of the United States,” their demands involving wetlands, and landowners’ ability to meaningfully contest those demands in U.S. district court. The Article suggests how property owners might use the Court’s recent property rights and environmental holdings, and dicta, as guides to more effectively protect their property interests in the face of broad assertions of regulatory authority premised on very general statutory provisions.