July 01, 2016

Déjà vu: Supremes hold Corps’ jurisdictional determinations constitute “final agency actions”

Sara Mogharabi, Ben Apple, and Gus Bauman

For the second time in just four years, the Supreme Court has expanded the list of Clean Water Act (CWA) actions immediately reviewable by the courts under the Administrative Procedure Act (APA). In 2012, a unanimous Court held in Sackett v. EPA that a U.S. Environmental Protection Agency (EPA) administrative compliance order, in which EPA determined a landowner had violated the CWA by filling wetlands, was “final agency action” subject to immediate judicial review under the APA. On March 30, 2016, the Court heard argument on a similar question in United States Army Corps of Engineers v. Hawkes Co.: Are “jurisdictional determinations” (JDs)—decisions by the U.S. Army Corps of Engineers (Corps) regarding whether waters on a property fall under federal Clean Water Act jurisdiction as “waters of the United States”—“final agency action” and thus also immediately reviewable in federal court? In a ruling that closely tracked the oral argument, the Court unanimously held on May 31, 2016, that a JD is “final agency action.”

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