Ag Policy Blog

Ag and business groups are hailing a 8-0 decision handed down Tuesday by the U.S. Supreme Court that makes it clear property owners have the right to challenge Clean Water Act determinations made by the U.S. Army Corps of Engineers.

The case involved Hawkes Co., a peat provider for golf courses and other sports turf applications. The company had been prevented from using property in Marshall County, Minnesota, because the Corps issued a jurisdictional determination categorizing the property as federally controlled wetlands.

The Pacific Legal Foundation, which argued on behalf of Hawkes, along with agriculture interest groups declared the ruling as important for farmers, ranchers and other landowners.

With growing concern about potential legal liabilities for farmers when it comes to the Clean Water Act, the ability to question and challenge the Corps when waters of the United States are identified on private land is expected to become increasingly important.

Because it is difficult to determine whether Clean Water Act permits are needed, the Corps allows property owners to obtain standalone jurisdictional determinations (JD) if properties contain waters of the U.S.

Throughout the Hawkes case the federal government argued a Corps’ determination is not a final action, making it non-reviewable.

Hawkes had sought to challenge the JD from the Corps after the agency determined the property contained "waters of the U.S." because the wetland had a "significant nexus" to the Red River in Minnesota and North Dakota roughly 120 miles away.

Farmers and ranchers often face tens of thousands of dollars in fines, long delays in acquiring permits and often are forced to make costly changes to work done on their property without Clean Water Act permits.

Until now landowners did not have the ability to challenge such jurisdictional determinations in court, or to conduct independent determinations that could in some cases disprove Corps determinations. A final agency action is reviewable through the Administrative Procedures Act only if there are no adequate alternatives to APA review in court.

In concurring with the court’s opinion, Justice Anthony Kennedy expressed concern about the Clean Water Act. Kennedy noted the reach and consequences of Clean Water Act remains a concern. Kennedy cited earlier views from Justice Samuel Alito that the consequences of even inadvertent violations can be crushing to landowners.

“An approved jurisdictional determination (JD) gives a landowner at least some measure of predictability, so long as the agency’s declaration can be relied upon," Kennedy wrote.

Kennedy noted that EPA and the Corps still decided in this case that a jurisdictional determination has no legally binding effect and can be revoked, arguments which the Supreme Court clearly rejected.

“The act, especially without the JD procedure were the government permitted to foreclose it, continues to raise troubling questions regarding the government’s power to cast doubt on the full use and enjoyment of private property throughout the nation," Kennedy noted.

The American Farm Bureau Federation and the National Cattlemen’s Beef Association were some of the leading ag groups filing friend of the court briefs in the case.

NCBA President Tracy Brunner said in a news release Tuesday the court’s ruling was a “major victory” for landowners across the country.

“This case highlights the issues landowners and land-use stakeholders have with the Clean Water Act,” Brunner said. “Neither of the options provided to landowners are realistic under the current regulatory environment. Applying for a 404 permit is expensive, exhaustive and time consuming. Gambling on EPA enforcement and risking civil and criminal penalties is foolish. This case strikes a balance that at least gives us some measure of regulatory certainty in the notoriously unclear Clean Water Act.”

PLF Principal Attorney M. Reed Hopper said in a statement Tuesday the court’s ruling will give landowners more certainty.

“For more than 40 years, millions of landowners nationwide have had no meaningful way to challenge wrongful application of the federal Clean Water Act to their land,” he said.

“They have been put at the mercy of the government because land covered by the act is subject to complete federal control...Everyone who values property rights and access to justice should welcome this historic victory.”

In March 2012, the high court ruled in favor of the plaintiffs in Sackett v. EPA, a case argued also by the Pacific Legal Foundation, that property owners have the right to a legal review if the EPA declares through jurisdictional determinations that wetlands are present on private property.

The Supreme Court opinion can be found at http://www.supremecourt.gov/…

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