On December 11, the U.S. Supreme Court granted certiorari to determine if a party can appeal a U.S. Army Corps of Engineers’ jurisdictional determination that a water feature is regulated under the Clean Water Act. United States Army Corps of Engineers v. Hawkes Co., Inc. et al., Docket No. 15-290. The Petition was filed by the Army Corps after the Eighth Circuit determined that a jurisdictional determination was final agency action and appealable. The Supreme Court’s decision will resolve a circuit split between the Eight and Fifth Circuits, and the issue is significant because prior to development landowners often obtain the Corps’ opinions as to whether a particular water feature is regulated under the Clean Water Act. If the Corps has jurisdiction, the landowner must obtain a permit (which takes considerable time and resources) or risk substantial enforcement penalties.
The Administrative Procedures Act allows judicial review of “final agency action for which there is no other adequate remedy in a court.” But the Corps has long maintained that its jurisdictional determination is not Continue reading Supreme Court to Decide Whether a Corps Jurisdictional Determination Can be Appealed