July 01, 2016

In Brief

Theodore L. Garrett

Supreme Court

United States Army Corps of Engineers v. Hawkes Co., No. 15-290, 578 U.S. __ (May 31, 2016)
The Supreme Court held that an “approved jurisdictional determination” (JD), specifying whether a particular property contains “waters of the United States,” is a final agency action judicially reviewable under the Administrative Procedure Act. The Hawkes companies sought a permit from the U.S. Army Corps of Engineers to discharge material onto wetlands located on their property and planned to mine peat. The Corps issued an approved JD determining that the property contained “waters of the United States.” The High Court held that the approved JD marked the consummation of the Corps’ decision-making and as such was final agency action with legal consequences because the property owner faces potential liability under the Clean Water Act. The opinion stated that parties need not await enforcement proceedings to challenge final agency action where such proceedings carry the risk of serious criminal and civil penalties. The opinion of the Court relied on an EPA-Corps memorandum of agreement (MOA), which the Court characterized as stating that approved JDs were binding. In a brief concurring opinion, in response to the suggestion that the government could revoke or amend the MOA, Justice Kennedy (joined by Justices Thomas and Alito) stated that Clean Water Act, “especially without the JD procedure were the Government permitted to foreclose 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.”

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