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Landowners Have the Right to Appeal an Approved Jurisdictional Determination Under the Clean Water Act

Landowners Have the Right to Appeal an Approved Jurisdictional Determination Under the Clean Water Act

U.S. Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807 (2016).
The U.S. Supreme Court held an “Approved Jurisdictional Determination” (“AJD”) is a “final agency action” because it is a definitive statement by the U.S. Army Corps of Engineers (“Corps”) as to its jurisdiction over a property, and the AJD is binding on a landowner and the Corps. The Court also held a landowner’s alternatives to a judicial appeal of an AJD are inadequate. A landowner may proceed with development activities and risk an enforcement action, or apply for a permit and seek judicial review if the result was unfavorable.

The Clean Water Act (“CWA”) prohibits a person from discharging a pollutant into “waters of the U.S.” (“WOTUS”) without a permit. The CWA permitting process can be expensive and onerous. The process may also limit the development and use of a property. A permit is only necessary, however, if WOTUS are present. The definition of WOTUS, therefore, is integral to implementing and complying with the CWA.

To determine to what extent the Corps may assert CWA jurisdiction over a property, landowners, potential purchasers, and developers may request an AJD. An AJD is a formal ruling from the Corps on what it considers WOTUS on a property.

In U.S. Army Corps of Engineers v. Hawkes Co., peat mining companies sought AJDs prior to mining on properties containing wetlands. The Corps issued AJDs stating each of the wetlands were WOTUS. The proposed mining activities, therefore, required a permit. The mining companies sought administrative review.

After exhausting their administrative remedies, the mining companies sought judicial review. The federal district court dismissed for lack of jurisdiction. The Eighth Circuit Court of Appeals reversed. The Eighth Circuit held an AJD is a “final agency action” for which there is no other adequate remedy. Judicial review of an AJD, even without a permit denial, was therefore available to a property owner. Prior to Hawkes, no federal circuit had held a district court had jurisdiction to hear an appeal of an AJD.

The Corps appealed. Due to the split among circuit courts of appeal, the U.S. Supreme Court granted certiorari.

The Court affirmed. The Court held an AJD is a “final agency action” because it is a definitive statement by the Corps as to its jurisdiction over a property, and the AJD is binding on a landowner and the Corps. The Court also held a landowner’s alternatives to a judicial appeal of an AJD are inadequate. A landowner may proceed with development activities and risk an enforcement action, or apply for a permit and seek judicial review if the result was unfavorable. The Hawkes case affirms the importance of requesting an AJD, and illustrates the potential for the Court to shape the scope of CWA jurisdiction in future cases.

By Vanessa A. Silke of Baird Holm

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