In June, Chief Justice Roberts wrote a unanimous opinion in United States Army Corps of Engineers v. Hawkes Co., Inc., holding that landowners have the right to challenge jurisdictional determinations by the Environmental Protection Agency (EPA) or Corps of Engineers (COE) that water on their lands is governed by the Clean Water Act.

This finding is good news for landowners, particularly in light of the EPA’s new rule defining Waters of the United States (WOTUS), which is currently stayed pending litigation.

First, this holding frees landowners from the Catch-22 position that the EPA or COE would have put them in. Rather than being forced to obtain a permit they believe unnecessary or face stiff penalties, landowners may seek judicial review of a jurisdictional determination.

This might serve to be particularly important if the EPA’s new rule defining WOTUS goes forward. Given the breadth of the new rule and uncertainty in exactly which waters could be covered, landowners might certainly find themselves in need of challenging a jurisdictional determination.

Second, although certainly not binding on the Court, Justices Kennedy, Thomas and Alito issued a concurring opinion expressing their concerns over the reach of the Clean Water Act and the impact the law might have on private property rights. In the seemingly likely event that the WOTUS rule finds its way to the Supreme Court, this language provides hope to landowners and challengers that they might have a chance at convincing the Court the new rule is improper.

The United States Supreme Court decision in Hawkes allows landowners the right to challenge what they believe to be inaccurate determinations by the federal government as to what waters are governed by the Clean Water Act and its regulations. This right is extremely important now, and might be even more critical in the years to come.

Hawkes revisited

As way of background in the Hawkes case, the COE issued an approved jurisdictional determination finding 150 of the landowner’s 530 acres qualified as Water of the United States and, therefore, was covered by the Clean Water Act. Because of this, the landowners were required to obtain federal permits before beginning their planned peat mine or they would face hefty fines and potential criminal action.

The landowner sued, claiming the approved jurisdictional determination was incorrect in concluding their property contained Water of the United States (WOTUS). Because of this, the landowner did not believe obtaining a permit was necessary. The COE sought to dismiss the lawsuit, arguing their jurisdictional determination was not a “final agency action” that allowed judicial review.

The trial court agreed with the COE and dismissed the suit. The 8th U.S. Circuit Court of Appeals reversed that decision, and the U.S. Supreme Court took the case, hearing oral arguments in March.

In its ruling last month, the Supreme Court sided with the landowner. In an 8-0 decision, the Justices found an approved jurisdictional determination is a final agency action as required for judicial review to be allowed. Were this not the case, the Court noted, a landowner would be left with two insufficient alternatives. First, they could spend the time and money to obtain a permit they do not believe is necessary. Or second, they could move forward and face civil fines up to $37,500 per day and potential criminal penalties. Because neither of these alternatives were feasible, the Court found an approved jurisdictional determination could be appealed by a landowner.