Hawkes v. U.S. Army Corps of Engineers: Is a Wetlands Jurisdictional Determination Reviewable Under the Administrative Procedure Act?

Date01 April 2016
Author
4-2016 NEWS & ANALYSIS 46 ELR 10291
Hawkes v. U.S. Army Corps
of Engineers: Is a Wetlands
Jurisdictional Determination
Reviewable Under the
Administrative Procedure Act?
by Chris Dow
Chris Dow is an environmental attorney in San Francisco, California, with experience in wetlands permitting issues.
On March 30, 2016, the U.S. Supreme Court heard
oral argument in Hawkes Co. v. U.S. Army Corps
of Engineers.1 is case from the U.S. Cour t of
Appeals for the Eighth Circuit asks whether a wetlands
jurisdictional determination (JD)—the U.S. Army Corps
of Engineers’ (the Corps’) ocial stance on whether a wet-
lands areas is subject to Clean Water Act (CWA)2 §404
permitting requirements—constitutes a nal agency action
that is subject to judicial challenge under the Administra-
tive Procedure Act (APA).3 Currently, there is a circuit split
on this issue: e Eighth Circuit in Hawkes ruled that a JD
is immediately reviewable under the A PA, while the U.S.
Court of Appeals for the Fifth Circuit and the U.S. Court
of Appeals for the Ninth Circuit have held that a JD is not
immediately reviewable.4
If the Court rules that a JD is a nal agency action, a
person who wishes to undertake ll activities in wetlands
areas will be a llowed to challenge the legal suciency of
a JD before completing the §404 wetlands permitting
process, and before facing an administrative enforce-
ment action for alleged illegal lling of wetlands. From
the Corps’ perspective, if the Court so holds, the decision
would introduce uncertainty and delay in the administra-
tion of the Corps’ statutory charge under the CWA. Fur-
ther, the prospect of litigation could have a chilling eect
on the issuance of JDs in the rst instance.
1. 782 F.3d 994, 45 ELR 20070 (8th Cir. 2015), cert. granted (U.S. Dec. 11,
2015) (No. 15-290).
2. 33 U.S.C. §§1251-1387, ELR S. FWPCA §§101-607.
4. Belle Co., LLC v. U.S. Army Corps of Eng’rs, 761 F.3d 383, 44 ELR 20175
(5th Cir. 2014), cert. denied, 135 S. Ct. 1548 (2015); Fairbanks North Star
Borough v. U.S. Army Corps of Eng’rs, 543 F.3d 586, 38 ELR 20239 (9th
Cir. 2008).
Environmental professionals only generally familiar
with CWA and wetlands issues can quick ly see how the
Hawkes case is highly charged from an environmental pol-
icy perspective, with the government and environmental
protection groups on one side and property developers and
property rights advocates on the other. But notwithstand-
ing the respective merits of the policy argu ments on either
side, an analysis of case law considering reviewability under
the A PA of government administrative determinations in
the environmental regulatory arena suggests that a JD is
not a proper subject of judicial review.
I. Sackett v. EPA: The Supreme Court
Sets the Standard for Judicial Review of
CWA Preenforcement Agency Action
Under the APA
A. The Sacketts Fill Their Lot
e Sacketts owned property just north of a lake but sepa-
rated from it by several lots with permanent structures.5
In preparation for building a house, they lled in part of
their property.6 Months later, they received an administra-
tive compliance order from the U.S. Environmental Pro-
tection Agency (EPA) stating t hat the Sacketts’ residential
property contains wetlands; the Sacketts’ lling in of these
wetlands violated the CWA; and the Sacketts must imme-
diately remove the ll according to an EPA work plan.7 e
5. Sackett v. U.S. Envtl. Prot. Agency (EPA), 132 S. Ct. 1367, 1370, 42 ELR
20064 (2012).
6. Id.
7. Id. at 1371.
Copyright © 2016 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

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