U.S. Supreme Court Upholds Landowner’s Right to Appeal "Waters of the U.S." Determination

Tuesday, May 31st, 2016
Peggy Kirk Hall, Associate Professor, Agricultural & Resource Law

A landowner may immediately appeal an agency’s determination that property contains “waters of the United States” that is subject to the federal Clean Water Act, according to a decision issued today by the United States Supreme Court.

The court’s holding in Army Corps of Engineers v. Hawkes Co. centered on a decision by the U.S. Army Corps of Engineers (the Corps) that property in Minnesota owned by the Hawkes Company (Hawkes) contained wetlands that were subject to the Clean Water Act.  Hawkes planned to mine peat on the property, and would have to comply with Minnesota regulations.  The Corps decided that Hawkes must also comply with federal Clean Water Act regulations, based on its “jurisdictional determination” that the property contained waters of the United States because its wetlands had a “significant nexus” to the Red River of the North, located 120 miles away.   

Hawkes challenged the Corps’ jurisdictional determination in federal district court.  The Corps requested dismissal of the case, arguing that its jurisdictional determination was not a "final agency action" that Hawkes could appeal in court.  Rather, the Corps asserted that Hawkes should apply for a Clean Water Act permit and challenge the results of the permit request if dissatisfied or should proceed without a permit and challenge the jurisdictional determination in a likely enforcement action.

The federal district court agreed with the Corps and dismissed the case.  Hawkes then appealed to the Eighth Circuit Court of Appeals, which reversed the district court’s decision.  The Corps requested review of the appeal by the United States Supreme Court, which accepted the case.

The Supreme Court concluded that the Corps’ jurisdictional determination is appealable according to the federal Administrative Procedures Act, which allows an aggrieved party to appeal a “final” agency action.  An action is final if it determines legal consequences,“marks the consummation of the agency’s decision making process,” and when there are no adequate alternatives for relief other than judicial review.  All three circumstances existed in the Hawkes case, said the Court, stating that parties should not have to await enforcement proceedings that carry the risk of criminal and civil penalties before challenging a jurisdictional determination or be forced through a lengthy and costly permitting process before being able to challenge the Corps’ jurisdictional determination. 

Read the decision in Army Corps of Engineers v. Hawkes Co. here.

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