On December 11, the U.S. Supreme Court granted certiorari to determine if a party can appeal a U.S. Army Corps of Engineers’ jurisdictional determination that a water feature is regulated under the Clean Water Act. United States Army Corps of Engineers v. Hawkes Co., Inc. et al., Docket No. 15-290. The Petition was filed by the Army Corps after the Eighth Circuit determined that a jurisdictional determination was final agency action and appealable. The Supreme Court’s decision will resolve a circuit split between the Eight and Fifth Circuits, and the issue is significant because prior to development landowners often obtain the Corps’ opinions as to whether a particular water feature is regulated under the Clean Water Act. If the Corps has jurisdiction, the landowner must obtain a permit (which takes considerable time and resources) or risk substantial enforcement penalties.

The Administrative Procedures Act allows judicial review of “final agency action for which there is no other adequate remedy in a court.” But the Corps has long maintained that its jurisdictional determination is not appealable and it is only when a permit is denied that one can challenge the jurisdictional determination. In Belle Co. v. U.S. Army Corps of Eng’rs, 761 F.3d 383 (5^th Cir. 2014), the Fifth Circuit agreed that the Corps’ jurisdictional determination is not final agency action and the Supreme Court denied review. Kent Recycling Services, LLC v. U.S. Army Corps of Engineers, 135 S. Ct. 1548 (2015).

In Hawkes, the Corps determined it had jurisdiction over a wetland that Hawkes Co. Inc. wanted to mine for peat. Hawkes sought judicial review of the jurisdictional determination under the Administrative Procedure Act, but the district court found that it lacked jurisdiction because the determination was not “final agency action.” However, the Eighth Circuit, relying on Sackett v. EPA, 132 S.Ct. 1367 (2012), disagreed. The Eighth Circuit concluded that a jurisdictional determination is final agency action because “absent immediate judicial review, the impracticality of otherwise obtaining review, combined with the uncertain reach of the Clean Water Act and the draconian penalties imposed for the sort of violations alleged in this case leaves most property owners with little practical alternative but to dance to the EPA’s [or to the Corps’] tune.”

Oral argument is expected in Spring 2016 and we will closely follow the Supreme Court’s decision.