What’s at stake as WOTUS heads to the Supreme Court?

Instead, the question that will be considered by the U.S. Supreme Court is how and when landowners may appeal the government’s decision that waters of the U.S. exist on their property.

Tiffany Lashmet

Associate Professor & Specialist / Texas A&M University AgriLife Extension

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The Supreme Court’s decision in U.S. Army Corps of Engineer v. Hawkes Co. could be extremely important for the agriculture industry. The case will be considered by the country’s highest court this spring, and a decision is expected by summer.

Legal background

Clean Water Act
Under the CWA, the EPA and U.S. Army Corps of Engineers (COE) are given authority over all waters of the U.S. Specifically, 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 must obtain a federal permit from the EPA.

The Hawkes case specifically involves the discharge of dredge and fill material, governed by Section 404 of the CWA.

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,” as to whether waters on their particular property constitute a water of the U.S. such that a permit is required.

If the COE’s approved jurisdictional determination finds that waters of the U.S. are present on a landowner’s property, the landowner may 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.

Administrative Procedures Act
The landowner’s right to appeal to court is governed by the Administrative Procedures Act (APA). Under the APA, an agency action (such as that of the COE) is subject to judicial review only when the following two requirements are met: The action must mark the consummation of the agency’s decision-making process, and the action must be one by which rights or obligations have been determined or from which legal consequences will flow.

Factual background

Hawkes seeks to mine peat on 530 acres in Minnesota. In February 2012, the COE issued an approved jurisdictional determination concluding the property contained waters of the U.S. and was subject to CWA jurisdiction. This was administratively appealed and a revised opinion issued in December 2012, concluding that 150 acres constitute a water of the U.S.

Unhappy with this determination, Hawkes filed this lawsuit, alleging that the determination was incorrect. The COE responded seeking dismissal because their jurisdictional determination was not a formal agency action for which judicial review was allowed.

The trial court dismissed the appeal, finding that the determination was not a final agency action allowing judicial review because it did not meet the second factor APA required for review. The appellate court (the 8th Circuit Court of Appeals) reversed this decision, holding that a jurisdictional determination is a reviewable final agency action under the APA. The COE appealed to the U.S. Supreme Court.

Why should beef producers care?

This case seeks to answer a critical question regarding the rights of landowners to challenge the decision of the COE/EPA that their property includes waters of the U.S., requiring a federal permit to undertake certain actions. Unfortunately, the same situation facing the development company could face agricultural producers as well.

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

He could abandon his plan to build the tank or plow the ground, hamstringing him with what he can do on his own property.
He could go through the permitting process to obtain the necessary federal Section 404 permit, but this could take years and thousands of dollars; meanwhile, his cattle would not have the stock tank and the producer would not have his new field.
He could thumb his nose at the jurisdictional determination and proceed with his plans. If, however, the COE or EPA caught wind of this, they could begin an enforcement action against the farmer, who could face staggering 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.

Although currently stayed and not in effect, if the new definition of waters of the U.S. does go into effect, many producers could find themselves in the undesirable position of being told their property contains waters of the U.S. and needing to challenge that decision.

Thus, the court’s forthcoming decision in Hawkes is likely more important now than ever before.