United States: Supreme Court Provides for Judicial Review of Army Corps Determinations

On May 31, 2016, the Supreme Court of the United States held that final determinations by the U.S. Army Corps of Engineers regarding the presence or absence of "waters of the United States" can be appealed to the courts. The case, Army Corps of Engineers v. Hawkes Co., 578 U.S. ____ (2016), is likely to lead to a profusion of lawsuits by affected parties, and also revealed a view among the Justices that the definition of "waters of the United States" reaches too far.


The Clean Water Act (CWA) regulates discharges to "navigable waters," defined as "waters of the United States, including the territorial seas." 33 U.S.C. § 1362(7). In 1985, the Court established that the term "navigable waters" includes more than just waters that would be deemed "navigable" in the "classical" or traditional sense. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 133 (1985). But, despite several related Court decisions since then, see, e.g., Rapanos v. United States, 547 U.S. 715 (2006), Solid Waste Agency v. United States Army Corps of Eng'rs, 531 U.S. 159 (2001), the scope of the terms "navigable waters" and "waters of the United States" remains "notoriously unclear." Sackett v. EPA, 132 S. Ct. 1367, 1375 (U.S. 2012) (Alito, J., concurring). The Corps and the U.S. Environmental Protection Agency (EPA) attempted to provide some clarity in May 2015 by issuing a new rule modifying the definition. But the new rule—commonly dubbed the WOTUS rule—remains mired in controversy, subject to challenges in federal district courts around the country and currently stayed nationwide. See In re EPA, 803 F. 804 (6th Cir. 2015).

Defining "navigable waters" and "waters of the United States" is important under several CWA programs, including those regulating discharges of dredged or fill material under Section 404 (administered jointly by the Corps and EPA), discharges of pollutants from "point sources" under Section 402 (delegated to most states for permitting under the National Pollution Discharge Elimination System, or NPDES), and spills of oil and other hazardous substances under Section 311.

Jurisdictional Determinations

While the terminology remains muddy, a project proponent can seek clarity by asking the Corps to determine whether "waters of the United States" exist within a specific project area. In response to such requests, the Corps can provide a preliminary jurisdictional determination (JD), which advises the proponent as to whether "waters of the United States" may be present, or an approved JD, which is a "definitive, official determination that there are, or that there are not, jurisdictional 'waters of the United States' on a site." Corps, Regulatory Guidance Letter, No. 08-02 (June 26, 2008). Under the Corps' regulations, preliminary JDs are non-binding and advisory in nature and cannot be appealed, see 33 C.F.R. § 331.2, while approved JDs "constitute a Corps final agency action" and can be administratively appealed, 33 C.F.R. §§ 320.1(a)(6), 331.2. Approved JDs can be relied upon for five years. Corps, Regulatory Guidance Letter No. 05-02 (June 14, 2005).

Judicial Review

In Hawkes, the Court concluded that approved JDs can be challenged in court under the Administrative Procedures Act (APA). The Court's analysis was based on a two-prong test set forth in Bennett v. Spear, 520 U.S. 154 (1997). Under that test, an agency action is final and judicially reviewable under the APA if it: (1) marks the consummation of the agency's decisionmaking process; and (2) causes rights or obligations to be determined, or legal consequences to flow. While there is no dispute that approved JDs satisfy the first prong, the Corps argued that approved JDs are just one step in a permitting process that ultimately provides for judicial review. The Corps also asserted that a project proponent could seek judicial review if it proceeded without a permit and eventually faced an enforcement action. Other courts have been convinced that these alternative remedies were adequate to counter the assertion of a right to judicial review of approved JDs under the APA. See, e.g., Belle Co., L.L.C. v. United States Army Corps of Eng'rs, 761 F.3d 383, 393-394 (5th Cir. 2014) (holding that a JD is not reviewable final agency action); Fairbanks N. Star Borough v. U.S. Army Corps of Eng'rs, 543 F.3d 586, 593 (9th Cir. 2008) (same); Nat'l Ass'n of Homebuilders v. EPA, 956 F. Supp. 2d 198, 209-212 (D.D.C. 2013) (explaining that a Corps determination that a property contains traditional navigable waters is practically indistinguishable from a JD and thus is not final agency action). But in Hawkes, the Court took a "pragmatic" approach and found the alternatives that the Corps proposed were inadequate in light of the resources required to navigate the permitting process and the potential liability that can arise in the CWA enforcement context. Accordingly, the Court concluded that an approved JD is a final agency action judicially reviewable under the APA.

Justice Roberts delivered the 8-0 opinion of the Court, affirming a decision by the Eighth Circuit. Justices Kennedy, Thomas and Alito added a concurrence to emphasize the need for certainty regarding "waters of the United States." Justice Kagan added a concurrence to clarify that the second prong of Bennett v. Spear is satisfied based on a memorandum of agreement (MOA) between the Corps and EPA—the two agencies authorized to enforce the CWA—establishing that JDs are binding. Justice Ginsburg added a concurrence stating that approved JDs can be considered final regardless of the MOA.


The Court's decision is likely to lead to an increase in litigation. Project proponents, landowners and other affected parties that are unhappy with an approved JD can now challenge it in court. Project opponents also are likely to rely on Hawkes to challenge the legitimacy of approved JDs. While at some point, the increased involvement of the courts may result in clearer rules for identifying and delineating waters of the United States, it seems likely in the coming years to unravel the Corps' efforts to develop consistent approaches and guidelines. See, e.g., EPA/Corps, Revised Guidance on Clean Water Act Jurisdiction Following the Supreme Court Decision in Rapanos v. U.S. and Carabell v. U.S. (Dec. 2, 2008); Corps, Jurisdictional Determination Form Instructional Guidebook (May 30, 2007).

The Hawkes decision also provides a glimpse into how the WOTUS rule may be treated, if challenges to that rule eventually reach the Court. While EPA and the Corps claimed that "the scope of jurisdictional waters will decrease" under the WOTUS rule, 80 Fed. Reg. 37054, 37101 (June 29, 2015), that claim does not seem to be getting much traction in the courts. For example, in an August 2015 decision, a federal judge blocked the implementation of the rule, calling it "exceptionally expansive." North Dakota v. United States EPA, 127 F. Supp. 3d 1047, 1053 (D.N.D. 2015). In Hawkes, the Court signaled that it shares that view, reciting statistics on the expansive area encompassed by the Corps' jurisdiction ("half of Alaska and an area the size of California in the lower 48 States") and expressing (in the concurrence of Justices Kennedy, Thomas and Alito) that "the reach and systemic consequences of the Clean Water Act remain a cause for concern." If it gets the opportunity, the Court seems poised to narrow the definition of "waters of the United States."

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Sheppard Mullin Richter & Hampton
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Sheppard Mullin Richter & Hampton
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions