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

136 S.Ct. 1807 (2016)


The Clean Water Act regulates the discharge of pollutants into “the waters of the United States.” Because it can be difficult to determine whether a particular parcel of property contains such waters, the U. S. Army Corps of Engineers will issue to property owners an “approved jurisdictional determination” (JD) stating the agency’s definitive view on that matter. The Clean Water Act (CWA) requires a permit from D 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. The appeals court held that the APA provides for judicial review of all final agency actions, not just those that impose a self-executing sanction. The supposition that P has two alternatives ignores the prohibitive cost of taking either of these alternative actions to obtain judicial review of D's assertion of CWA jurisdiction over the property. Both permitting and mining are inadequate remedies. Ps are effectively left with no immediate judicial review and no adequate alternative remedy. Under these facts, the JD is subject to immediate judicial review. Absent immediate judicial review, the impracticality of otherwise obtaining review, combined with 'the uncertain reach of CWA and the draconian penalties for violations leaves most property owners with little practical alternative but to dance to D's tune. It reversed the lower court and D appealed.