Hawkes Co., Inc. v. United States Army Corps Of Engineer

782 F.3d 994 (2015)

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Nature of the Case

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Facts

The Clean Water Act (CWA) requires a permit from the Corps to discharge dredged or fill materials into 'navigable waters,' and a permit from the Environmental Protection Agency (EPA) to discharge any 'pollutant' into navigable waters. 'Navigable waters' to mean 'the waters of the United States.' D and the EPA used this to make 'sweeping assertions of jurisdiction' over every stream, ditch, and drain that can be considered a tributary of, and every wetland that is adjacent to, traditional navigable waters. CWA imposes heavy civil and criminal penalties on a person who discharges into navigable waters without a required permit, or in violation of an issued permit. P wanted to mine peat on wetlands property that D determined was subject to the CWA. The permitting process is very expensive. Instead, P sought judicial review of D’s determination that the property was subject to the CWA. D moved to dismiss the complaint, arguing the JD (Approved Jurisdictional Determination) was not a final agency action and the issue was not ripe for judicial review. The court ruled that D’s determination was final. It then held that no rights or obligations flowed from that decision because P’s options were still open to either mine with or without a permit. Thus, there was no final agency action to review, and it dismissed the complaint. P appealed.