The U.S. Supreme Court will decide if landowners can challenge whether their properties are subject to the Clean Water Act.

Should landowners be allowed to challenge whether their properties are subject to the federal Clean Water Act?

Currently, the answer to that question depends on geography.

Landowners cannot fight such regulatory findings in court if they’re located within the nine Western states overseen by the 9th U.S. Circuit Court of Appeals or the three Southern states overseen by the 5th Circuit.

Both appellate courts have rejected attempts by landowners to contest “jurisdictional determinations” issued by the U.S. Army Corps of Engineers.

However, the 8th Circuit Court arrived at the opposite conclusion earlier this year.

In the seven Midwestern states in that circuit, landowners can ask federal judges to reverse those determinations, which carry the heavy regulatory burdens of complying with the Clean Water Act.

The answer is even murkier in the remaining states, where federal appellate courts haven’t faced the question.

“It creates inequity around the country and uncertainty for a lot of landowners,” said Ellen Steen, general counsel of the American Farm Bureau Federation.

The U.S. Supreme Court has now agreed to clear up this confusion by reviewing a lawsuit in which a Minnesota peat moss company disputed the federal government’s determination that its wetlands come under federal jurisdiction.

The company, Hawkes Co., wanted to extract peat moss from the wetlands, but the U.S. Army Corps of Engineers said it would first need to apply for a Clean Water Act permit.

According to the Farm Bureau, the outcome of the case is particularly important now that the federal government has tried to expand the definition of “waters of the U.S.” to bring more land under CWA jurisdiction.

“We think the government applies its authority way too broadly,” said Steen, the Farm Bureau’s general counsel.

The nation’s highest court will resolve an issue that’s been interpreted differently by the appellate courts: Whether “jurisdictional determinations” are final agency actions that carry legal consequences.

The 8th Circuit held that such determinations have a major impact on what landowners can do with their property and thus could be challenged in federal court.

The federal government, with which the 9th Circuit and 5th Circuit agree, maintains that such determinations are merely advisory opinions about whether property is subject to the Clean Water Act.

If landowners disagree with a jurisdictional determination, they can proceed with planned activities and then challenge the finding when the government brings an enforcement action against them, federal attorneys argue.

Landowners can also go through the costly and time-consuming process of applying for a Clean Water Act permit.

If their request is denied or they disagree with permit conditions, landowners can then file a lawsuit against the Corps, the government said.

The Farm Bureau believes the federal government’s arguments are unrealistic, given the amount of money at risk with either option, said Steen.

“We want farmers to be able to go to court to challenge that assertion of jurisdiction rather than defy a government order,” she said.

While the government considers jurisdictional determinations to be advisory, defying that advice can result in devastating financial and criminal penalties, Steen said.

“It’s just not the way it works in the real world,” she said. “Even if the government wants to call that an opinion, it has dramatic real world consequences for the farmer.”

Applying for a Clean Water Act permit can cost hundreds of thousands of dollars, and landowners can’t recoup those costs even if they’re ultimately successful in challenging a denial or in altering permit conditions, said Reed Hopper, an attorney with the Pacific Legal Foundation, a property rights law firm that represents the peat moss company.

“That’s not a meaningful option for a landowner,” he said. “If it’s wrong, the Corps has nothing to lose and the landowner has everything to lose.”

The Corps has traditionally issued thousands of jurisdictional determinations a year, and that number will likely rise under the new “waters of the U.S.” rules, which were approved earlier this year but have since been stayed by an appellate court, Hopper said.

Unless landowners can challenge those determinations, many effectively won’t be able to proceed with planned projects, he said. “The federal government obtains a veto power over the use of that land.”