ARTICLE
29 December 2015

Supreme Court To Decide If Army Corps Initial Jurisdictional Determination To Regulate Wetlands Under CWA Is Ripe For Judicial Review

SS
Seyfarth Shaw LLP

Contributor

With more than 900 lawyers across 18 offices, Seyfarth Shaw LLP provides advisory, litigation, and transactional legal services to clients worldwide. Our high-caliber legal representation and advanced delivery capabilities allow us to take on our clients’ unique challenges and opportunities-no matter the scale or complexity. Whether navigating complex litigation, negotiating transformational deals, or advising on cross-border projects, our attorneys achieve exceptional legal outcomes. Our drive for excellence leads us to seek out better ways to work with our clients and each other. We have been first-to-market on many legal service delivery innovations-and we continue to break new ground with our clients every day. This long history of excellence and innovation has created a culture with a sense of purpose and belonging for all. In turn, our culture drives our commitment to the growth of our clients, the diversity of our people, and the resilience of our workforce.
The Supreme Court of the United States agreed on Friday to review an important Clean Water Act decision issued by the Eighth Circuit in Hawkes Co., Inc., et al. v. U.S. Army Corps of Engineers, No. 13-3067 (April 10, 2015).
United States Environment

The Supreme Court of the United States (SCOTUS) agreed on Friday to review an important Clean Water Act (CWA) decision issued by the Eighth Circuit in Hawkes Co., Inc., et al. v. U.S. Army Corps of Engineers, No. 13-3067 (April 10, 2015).

The issue presented for SCOTUS is whether an Approved Jurisdictional Determination — the first step in the wetlands permitting process — is immediately reviewable. The Supreme Court showed similar interest in  Sackett v. EPA, 132 S. Ct. 1367 (2012). See our earlier blog on the Sackett decision.  At issue in Sackett was an EPA compliance order issued under the CWA requiring that the developer cease its filling activity of an allegedly regulated wetland. Later, rather than sooner, judicial review can leave the landowner open to considerable expenses.

In Sackett, SCOTUS found the compliance order to be reviewable once issued, so that the landowner did not have to await EPA's judicial enforcement of that order. Following Sackett, the courts have split as to whether  an Approved Jurisdictional Determination is similarly reviewable — with the Eighth Circuit holding yes, and the Fifth Circuit holding no.

In Hawkes, the plaintiff sought to mine peat from wetland property. The U.S. Army Corps of Engineers (Corps) upset that business plan when it issued an Approved Jurisdictional Determination that the property constituted "waters of the United States" (WOTUS), and therefore the company was  required to obtain a permit to discharge dredged or fill materials into these "navigable waters."

Review of the Approved Jurisdictional Determination was brought before the District Court. The District Court concluded that an Approved Jurisdictional Determination, although the consummation of the Corps' decisionmaking process, was not a "final agency action" subject to judicial review within the meaning of the Administrative Procedure Act, 5 U.S.C. § 704. While the appeal of that decision was pending before the Eighth Circuit, a panel of the Fifth Circuit reached a similar conclusion. Belle Co., LLC v. U.S. Army Corps of Engineers, 761 F.3d 383 (5th Cir. 2014), cert. denied, 83 U.S.L.W. 3291 (U.S. Mar. 23, 2015) (No. 14-493).

The Eighth Circuit concluded that the District Court (as well as the Fifth Circuit in Belle) "misapplied the Supreme Court's decision in Sackett v. EPA, 132 S. Ct. 1367 (2012)," and reversed the District Court opinion.

The SCOTUS determination could have heightened importance in the context of the EPA and the Corps recent release of its Final Clean Water Rule: Definition of "Waters of the United States." We had blogged about the new rule when it was published. The new WOTUS rule will substantially increase the number of potential wetlands, making challenges to the Corps' Approved Jurisdictional Determinations more likely if SCOTUS determines that such a determination is judicially reviewable.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Mondaq uses cookies on this website. By using our website you agree to our use of cookies as set out in our Privacy Policy.

Learn More