The Clean Water Act is so unconstitutionally vague as to require direct policing by the courts, a coalition of California farming and building groups told the U.S. Supreme Court this week in a brief filed by Briscoe Ivester & Bazel LLP.  The case, United States Army Corps of Engineers v. Hawkes Co., presents the issue whether determinations made by the U.S. Army Corps of Engineers that a property contains wetlands regulated by the Clean Water Act may be challenged in court.  The Ninth Circuit Court of Appeals, in an earlier case, held that such determinations (called “jurisdictional determinations” (or JDs)) cannot be challenged in court.  But the Eighth Circuit Court of Appeals, in the Hawkes case under review, held that they can.

The coalition’s amici brief—written by this firm on behalf of the California Farm Bureau Federation, the California Cattlemen’s Association, the California Building Industry Association, the Building Industry Legal Defense Foundation, and the California Business Properties Association—urges the U.S. Supreme Court to affirm that jurisdictional determinations can be challenged in court.  The brief explains that the Clean Water Act is a penal statute, and that due process requires that penal statutes define violations “with sufficient definiteness that ordinary people can understand what conduct is prohibited.”  But the Clean Water Act can be hopelessly vague.  Ordinary people typically must hire experts to conduct extensive testing and analyses to determine whether the Act even applies to their properties.  And the Government asserts that even everyday activities, such as bicycling, driving, or plowing, can violate the Act.  Allowing JDs to be challenged in court “would give landowners at least some degree of certainty about which parts of their properties, and which activities carried out on them, are regulated by the Act.”

The U.S. Supreme Court will hear oral argument in the case on March 30, 2016.  A decision is expected by the end of June.

The coalition’s amici brief can be found here.


Peter Prows
Briscoe Ivester & Bazel LLP
155 Sansome Street, 7th Floor
San Francisco, CA 94104
Telephone: (415) 402-2700
Fax: (415) 398-5630

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