On December 11, 2015, the U.S. Supreme Court granted certiorari to determine whether a jurisdictional determination approved by the U.S. Army Corps of Engineers (Corps) is a final agency action ripe for judicial review.  The decision will resolve a circuit split between the Eighth and Fifth Circuits. In U.S. Army Corps of Eng’rs v. Hawkes Co. Inc. et al., the Eighth Circuit ruled in favor of the petitioner property owners and determined that courts have jurisdiction to review Corps’ jurisdictional determinations (JDs) about whether a body of water is subject to its authority under the Clean Water Act (CWA). Case No. 15-290, review granted 12/11/15.

In Hawkes, the Corps determined that it had jurisdiction over a wetland that Hawkes Co. Inc. wanted to mine for peat. Hawkes sought judicial review of the Corps’ decision under the Administrative Procedure Act. The district court held that it lacked jurisdiction to review the JD because it was not a “final agency action.” The Eighth Circuit disagreed.  Hawkes Co. v. U.S. Army Corps of Eng’rs, 782 F.3d 994 (2014).  Please see our April 21, 2105 blog for a summary of the Eighth Circuit decision.

This issue is significant because landowners frequently seek out the Corps’ opinion as to whether it has jurisdiction over a particular wetland or body of water. If the Corps has jurisdiction, the landowner must obtain a permit from the Corps pursuant to Section 404 of the CWA. Without a permit, any landowner that proceeds with the activity risks civil and criminal penalties.

The circuit courts are currently split on whether JDs constitute final agency actions. Hawkes came after the U.S. Court of Appeals for the Fifth Circuit ruled that an EPA JD was not a final agency action in Belle Co. v. U.S. Army Corps of Eng’rs, 761 F.3d 383 (5th Cir. 2014). The Supreme Court denied certiorari. Kent Recycling Servs., LLC v. U.S. Army Corps of Eng’rs, 83 U.S.L.W. 3742, U.S. No. 14-493, cert. denied Mar. 23, 2015.

Now the Supreme Court will decide the issue. The Supreme Court’s decision will determine whether parties can immediately appeal JDs under the CWA that may adversely affect the companies’ right to use the land for lawful business activities. The only remaining options for challenging the JD would be costly. A party could either seek to complete a futile permitting process or proceed with the activity and risk enforcement. Please contact any member of the Schiff Hardin Environmental Group with questions about the CWA or the pending appeal.