Imagine you are planning to plow a new field on the farm your family has owned for generations. Before you do, in swoops the federal government—the U.S. Army Corps of Engineers (COE) or the Environmental Protection Agency (EPA)—claiming your land meets the definition of “waters of the U.S.,” requiring a federal permit before you plow your field.

What options do you have if this occurs? Answers will come soon as the U.S. Supreme Court decides U.S. Army Corps of Engineers v. Hawkes Co.

Legal background

Under the Clean Water Act (CWA), the EPA and COE are given authority over all waters of the U.S. If a person wishes to discharge point source pollutants into a water of the U.S. or seeks to discharge dredge and fill material into a water of the U.S., he or she must obtain a federal permit from the EPA.

Before engaging in activities that would result in the discharge of dredge and fill material, landowners may seek a determination from the COE, formally called an “approved jurisdictional determination.” This would identify whether waters on their property constitute a water of the U.S., and if a permit is required.

If the COE’s approved jurisdictional determination finds a landowner’s property includes waters of the U.S., the landowner might want to challenge this decision in court. Whether he has the right to make this challenge at this point in time, rather than waiting until a permit is obtained or an enforcement action is undertaken, is the key issue in this case.

In the Hawkes case, the development company sought to mine peat on 530 acres in Minnesota. In February 2012, the COE concluded the property contained waters of the U.S. and a permit was required. Unhappy with this decision, Hawkes filed suit. After years of appeals, the case is currently being decided by the U.S. Supreme Court. A decision is expected in June.

Potential impact on farmers

This case seeks to answer whether landowners can challenge the decision of the COE or EPA that their property includes waters of the U.S., requiring a federal permit to undertake certain actions. Unfortunately, farmers could face the same situation as the development company.

For example, if a farmer wanted to construct a new stock tank or plow new ground and the COE determined there are waters of the U.S. involved, the producer could find himself in Hawkes’ shoes. Without an option to appeal the determination to a court, the producer would have three undesirable choices:

  1. He could abandon his plan to build the tank or plow the ground, hamstringing him with what he can do on his own property.
  2. He could go through the permitting process to obtain the necessary federal Section 404 permit, but this could take years and thousands of dollars.
  3. He could thumb his nose at the jurisdictional determination and proceed with his plans, putting him at risk for fines of more than $37,000 per day.

Moreover, producers across the country are extremely concerned about the new, seemingly extraordinarily broad definition of “waters of the U.S.” adopted by the EPA and COE. If the new definition of “waters of the U.S.” goes into effect, many farmers could find themselves in the undesirable position of being told their property contains waters of the U.S. and needing to challenge that decision.