This decision is extremely important for landowners across the country.

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

In this case, the COE issued an approved jurisdictional determination finding that 150 of the landowner’s 530 acres constituted a Water of the United States (WOTUS) 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 that the approved jurisdictional determination was incorrect in concluding that their property contained WOTUS. Because of this, the landowner did not believe that obtaining a permit was necessary. The COE sought to dismiss the lawsuit, arguing that 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 U.S. Court of Appeals for the Eighth Circuit reversed, finding that the jurisdictional determination was a final agency action for which judicial review was allowed. The U.S. Supreme Court took the case and heard oral argument on March 30, 2016.


The Supreme Court sided with the landowner. In an 8-0 decision, the justices found that 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 go through the expense and time to obtain a permit they do not believe is necessary. On average, a person waits more than two years and spends more than $270,000 to obtain the permit needed in this case. Second, they could move forward and face civil fines of up to $37,500 per day and potential criminal penalties.

Because neither of these alternatives were feasible, the court found that an approved jurisdictional determination could be appealed by a landowner. Thus, the Eighth Circuit Court of Appeals was affirmed.

This case is extremely good news for landowners for a number of reasons, particularly in light of the EPA’s new rule defining WOTUS, which is currently stayed pending litigation.

First, this holding frees landowners from the catch-22 position that the EPA/COE would have put them in had an appeal not been an available option. 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 may serve to be particularly important if the EPA’s new rule defining WOTUS is allowed to go forward. Given the breadth of the new rule and uncertainty in exactly what waters may be covered, landowners may 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 that the law may 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 may have a chance at convincing the court the new rule is improper.

The U.S. 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 may be even more critical in the years to come.  end mark

Tiffany Dowell Lashmet
  • Tiffany Dowell Lashmet

  • Assistant Professor and Extension Specialist - Agricultural Law
  • Texas A&M AgriLife Extension Service