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Real Property & Development Review

The Supreme Court Confirms Right to Challenge Jurisdictional Determinations

Posted in Land Use

WetlandCan a landowner challenge a US Army Corps of Engineers determination that a property contains jurisdictional wetlands? In a unanimous opinion, the Supreme Court answered this question in the affirmative May 31, 2016 in USACE v Hawkes Co.

Under Section 404 of the Clean Water Act, the Corps regulates filling in of “waters of the United States,” including wetlands. To determine the presence of wetlands on a property, i.e., if a permit is required, landowners can ask the Corps for a jurisdictional determination (JD) of whether the Clean Water Act applies. Once approved, a JD confirms the presence (or absence) of wetlands subject to regulation on a particular property. A JD is considered an administratively appealable final agency action, and it binds the Corps and the Environmental Protection Agency for five years.

The Corps issued Hawkes a JD that confirmed the presence of jurisdictional wetlands on its property. After exhausting administrative remedies, Hawkes challenged the JD in Federal District Court. The district court dismissed the case, finding that the JD was not a “final agency action” as required for review under the federal Administrative Procedure Act. The Eighth Circuit Court of Appeals reversed that decision and the Corps appealed to the Supreme Court.

The Corps argued the JD was not a “final agency action” within the meaning of the APA, and even if it were, there were adequate landowner protections available. All eight Justices disagreed. To qualify as a final agency action, two conditions must be met: (1) the action must represent the “end of the road” in the agency’s decision-making process, it may not be tentative or interlocutory, and (2) the action must trigger rights and obligations or legal consequences. It was undisputed that the JD in question met the finality requirement and the court found that the “substantial criminal and civil penalties” imposed for the permit-less discharge into jurisdictional wetlands were legal consequences meeting the requirements of the second condition.

THE SIGNIFICANCE OF THE DECISION

The Hawkes decision gives landowners additional opportunities to contest a Corps decision regarding waters of the United States on their property. Hawkes also adds another “drop in the bucket” of confusion created by 30-years of legal battles over the Clean Water Act. The EPA recently attempted to clarify – and broaden – the scope of waters of the United States by issuing a Clean Water Rule in May 2015. That rule is on hold following a stay issued by the Sixth Circuit Court of Appeals in October 2015. Litigation is ongoing and an eventual appeal to the Supreme Court seems likely.

In the event of such an appeal, the Justices’ discussion of the Clean Water Act in Hawkes may be instructive. For example, writing in a concurring opinion, joined by Justices Thomas and Alito, Justice Kennedy noted the “notoriously unclear,” potentially “crushing” consequences of the Clean Water Act and how it “continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.” With these words, Justice Kennedy did little to clear up the confusion surrounding the Clean Water Act, but he made clear that the Court seems poised to revisit the matter.