On May 31, 2016, the Supreme Court of the United States (SCOTUS) issued its ruling in U.S. Army Corps of Engineers v. Hawkes Co. The case raised the question whether property owners could challenge “jurisdictional determinations” by the U.S. Army Corps of Engineers (USACE).  USACE considered Hawkes’ land to be “navigable waters,” based on the Clean Water Act, and therefore subject to a lengthy and expensive permitting process to use the land.  The court unanimously (8-0) affirmed a lower court’s decision that, because jurisdictional determinations were agency rules, the determinations could be challenged in the U.S. Court of Appeals.

Hawkes Co. argued that USACE erroneously determined the company’s land, used for harvesting peat, contained such navigable waters subject to the Clean Water Act.  The determination would cost the company more than $270,000 in the permitting process or, without permits, $37,500 per day in fines and risking imprisonment at the same time.  The federal government maintained that the USACE determinations could not be reviewed by the courts.  

In writing the decision, Chief Justice John Roberts called the “reach and systemic consequences of the Clean Water Act…a cause for concern.”  He went on to call violations of these determinations “crushing” for property owners.  This ruling is a victory for property owners, businesses, and others who have witnessed, firsthand, the damaging effects and increasing costs of federal overreach.