Landowners throughout the nation will soon learn whether they have the right to challenge in court decisions by federal agencies asserting jurisdiction over what the feds say are “wetlands” on their property.

In a high-stakes drama affecting millions of acres of privately owned land, the U.S. Supreme Court is being asked to decide if, under the Clean Water Act (CWA), the Environmental Protection Agency (EPA) and the Army Corps of Engineers have carte blanche to regulate bodies of water on private land, leaving landowners no recourse to challenge the agencies’ actions.

The case, U.S. Army Corps of Engineers v. Hawkers Company, Inc. et al., originated in rural Marshall County in northwestern Minnesota. Family-owned and operated Hawkes collects and processes high-quality peat for golf course greens and sports fields. Several years ago, Hawkes, in an effort to expand its production, entered into a contract with two businesses that jointly owned a 150-acre property adjoining the Hawkes operation. But before Hawkes or the two owners took any steps to develop the parcel, they wanted a determination from the Corps that the site was not subject to wetlands regulation under the CWA.

The CWA: A Booby Trap

Like other federal environmental statutes, the CWA is fraught with vague language that has left the law open to numerous conflicting interpretations since its enactment in 1972. Furthermore, the CWA has a strict liability system that enables the government to impose severe penalties on parties found guilty of releasing pollutants into water, without prosecutors having to prove intent. Over the decades, the law has become a booby trap for unsuspecting landowners, while at the same time enabling EPA and the Corps to expand their power, and enriching consultants and lawyers, who are often the only ones who can interpret the statute’s murky language.

With this in mind, it’s no wonder Hawkes wanted to make sure the Corps wouldn’t assert federal CWA jurisdiction over the property. But following a contentious multi-year administrative process, the Corps issued a “jurisdictional determination” asserting control over the property’s peat wetlands based on their supposed “significant nexus” to the Red River of the North, some 120 miles away. The Corps’ assertion of CWA jurisdiction over the site means that the landowner must seek a federal permit to develop the property, a process that can take many years and entails huge costs.

The Right to Judicial Review

The Pacific Legal Foundation (PLF), which represents Hawkes, successfully argued in the Eighth Circuit Court of Appeals that that the agency’s jurisdictional determination is subject to independent judicial review in federal court. PLF’s position is based in no small way on the High Court’s 2012 ruling in Sackett v. EPA. In that case, an Idaho couple trying to build a home on property they owned, received a “compliance order” from EPA, telling them to cease work on the home and restore the property to its pro-construction state or face fines of $37,500 per day. EPA issued the compliance order citing its power under the CWA, even though the Sacketts’ property contained no wetlands or any other features subject to the CWA. In a unanimous, 9 to 0 decision, the Supreme Court ruled that the Sacketts had the right to challenge EPA’s action in court.

PLF represented the Sacketts in their victory over EPA, and the Sacramento, Calf.-based legal foundation is aiming for a similar win over the Corps. “The appellate court decision in Hawkes finally provided landowners with some practical safeguards against abusive or erroneous enforcement of the Act by the Corps within the states comprising the Eighth Circuit,” write PLF’s Shauneen G. Werlinger and Damien M. Schiff. “The High Court should now make that safeguard apply throughout the land.”

The Supreme Court is set to hear the case on March 30, with a decision expected sometime in June. PLF hopes the court will rule as it did in Sackett and affirm landowners’ right to judicial review of agency final decisions. Over 60 organizations and individuals, including 29 states, joined 16 amicus briefs in supporting the Eighth Circuit Court’s decision in Hawkes. The case plays out before the backdrop of separate but related litigation challenging EPA’s “waters of the United States” (WOTUS) rule. Billed by the Obama administration as an attempt to “clarify” EPA’s and the Corps’ regulatory authority under the CWA, WOTUS would subject millions of acres of private land to federal zoning, requiring landowners to seek federal permits before making land-use decisions regarding their property.

Author