Make my day! "Dirty Harry" and final agency action.

• Author: Funk, William
• Position: Controversies Surrounding the 2015 Clean Water Rule

1. INTRODUCTION II. THE CLEAN WATER ACT AND WATERS OF THE UNITED STATES III. FINAL AGENCY ACTION IV. HAWKES CO. AND THE SUPREME COURT V. CONCLUSION I. INTRODUCTION

   In 1971, Clint Eastwood starred in the movie Dirty Harry, in which he plays a policeman, Harry Callahan. (1) The movie begins and ends with Harry, gun in hand, facing a wounded gunman who has a gun within reach after an extended gun battle. It is not clear whether Harry still has any bullets left in his gun, so Harry tells the gunman, "You've got to ask yourself one question: 'Do I feel lucky?'" (2) In the first instance, the gunman surrenders only to find that Harry was indeed out of bullets; in the second instance, the gunman goes for his gun, and Harry shoots him dead. In a later movie, in a similar situation Harry simply says, "Go ahead, make my day." (3) The gunman surrenders.

   What does this have to do with "final agency action"? When the Environmental Protection Agency (EPA) issued a compliance order to the Sacketts claiming that they were violating the Clean Water Act (CWA) (4) by placing fill on their property without a permit, (5) it was like Harry pointing the gun at the bad guy. If the Sacketts felt lucky, they could ignore the order and await EPA's enforcement of the order. Then, if the Sacketts were right, and they were not violating the CWA, they would be free. But if they were wrong, and EPA was correct, they would be subject to possible criminal penalties or significant civil fines. Trying to avoid this dilemma, the Sacketts sought judicial review of the compliance order. The government, however, argued among other things that the order was not final agency action under the Administrative Procedure Act (APA) (6) and therefore was not reviewable. (7) The Supreme Court unanimously rejected that argument, finding the order to be final agency action, in effect denying EPA the ability to extort compliance with its orders. (8)

   Currently pending before the Supreme Court is another case, U.S. Army Corps of Engineers v. Hawkes Co. (Hawkes Co.). (9) In that case, the U.S. Army Corps of Engineers (Corps) had issued a formal jurisdictional determination (JD) that certain property was wetlands subject to its jurisdiction. (10) The property owners disagreed, but, like the property owners in Sackett, they faced a dilemma. If they ignored that determination, awaited enforcement against their development of their property, and were correct, they would be free, but if the Corps was correct, they would be subject to potential criminal penalties or significant civil fines. (11) So Hawkes sought judicial review, but the government, as it had in Sackett, argues that the Corps' JD is not final agency action under the APA and therefore not judicially reviewable. (12) The Eighth Circuit in Hawkes Co., contrary to decisions in both the Fifth and Ninth Circuits, held the JD to be final agency action subject to review. (13) The Supreme Court will resolve this split in Hawkes Co. This Article will explain how and why the Supreme Court should affirm the Hawkes Co. decision, but it will suggest that this case presents a perfect opportunity for the Court to clarify what is necessary to constitute final agency action subject to judicial review under the APA more generally.

   Part II of this Article describes how the CWA regulates the discharge of fill into the "waters of the United States" and how the Supreme Court has interpreted the extent of the jurisdiction of the CWA. It then explains the process by which the Corps issues its JDs. Part III describes how the Supreme Court has interpreted "final agency action" under the APA and how the circuits have applied that doctrine to challenges of JDs. Part IV presents how the Court is likely to resolve the split in the circuits over the reviewability of JDs. Part V concludes the Article.

2. THE CLEAN WATER ACT AND WATERS OF THE UNITED STATES

   Section 301 of the CWA generally prohibits the discharge of any pollutant into "navigable waters" without a permit. (14) The term "navigable waters" is unhelpfully defined as "the waters of the United States, including the territorial seas." (16) If the pollutant is dredged or fill material, the permit must be issued by the Corps under section 404 of the Act. (16) As Justice Scalia wrote for the Court in Rapanos v. United States, (17) "[t]he burden of federal regulation on those who would deposit fill material in locations denominated 'waters of the United States' is not trivial." (18) Indeed, he quoted statistics to the effect that the average applicant for an individual 404 permit (19) spends 788 days and $271,596 to complete the process, while an average applicant for a nationwide permit spends 313 days and $28,915. (20) Moreover, if anyone discharges dredged or fill material into waters of the United States without a permit, they face possible civil and criminal liability, as well as requirements to undo or mitigate the harm they have done. (21) In light of the costs associated with obtaining a permit, if a permit can be obtained at all, and the penalties involved if one acts without a permit where one was required, it is critical for anyone contemplating development of an undeveloped site to determine whether the site contains waters of the United States.

   What constitutes waters of the United States, however, is often unclear, especially when it comes to wetlands. Over the years, the Corps and EPA have issued regulatory definitions of the term. (22) In addition, the Supreme Court has interpreted the term three times. In United States v. Riverside Bayview Homes, Inc., (23) the Court held that waters of the United States could include adjacent wetlands. (24) In Solid Waste Agency of Northern Cook County v. US. Army Corps of Engineers (SWANCC), (25) however, the Court found that isolated waters or wetlands could not be waters of the United States simply because they were used by migratory fowl. (26) Finally, in Rapanos v. United States, the Court in a split decision addressed the extent to which wetlands could be considered wetlands adjacent to traditional navigable waters. (27) Given the split decision, with the plurality opinion and Justice Kennedy's opinion differing as the test to be used to determine what could be included in waters of the United States, EPA and the Corps offered guidance as to when they would exercise jurisdiction under the CWA. Most recently, the Corps and EPA engaged in rulemaking to establish a new and substantially more detailed definition of waters of the United States. (28) That rule is currently stayed by the Sixth Circuit (29) and preliminarily enjoined by the U.S. District Court for the District of North Dakota. (30) Whatever the ultimate outcome of these suits or the validity of the new rule, the problem of determining on the ground what constitutes waters of the United States will remain.

   The difficulty in determining what land (or water) falls within the waters of the United States definition has long been recognized by the Executive Branch in general and the Corps in particular. President Clinton, shortly after coming into office, convened an interagency task force to address a number of problems related to the regulation of wetlands under the CWA. (31) The resulting August 1993 Plan, among other things, called upon the Corps to establish an administrative appeals process for persons unhappy with the Corps' JDs over particular lands and waters, as well as with its denials of permits under section 404. (32) In 1995, the Corps proposed such an administrative appeals system, (33) but it was not until 2000 that the Corps finally adopted the rule regarding administrative appeals of JDs. (34)

   Under this regulation a landowner or a lease, easement, or option holder may request a District Engineer to issue an "approved Jurisdictional Determination," (35) or JD, a written Corps determination that either a wetland, a waterbody, or both are subject to the Corps' regulatory jurisdiction. If the recipient is not satisfied with the JD, the recipient may appeal the JD to the appropriate Division Office within sixty days of receiving the JD. (36) The appeal is considered by a Review Officer who was not involved in the original JD. (37) The Review Officer may schedule an informal meeting with the appellant and relevant Corps regulatory personnel. (38) If the Review Officer believes a site visit would help clarify the record, he may conduct such a visit within sixty days of receipt of the appeal. (39) Within ninety days of the appeal the Review Officer reviews the record, and the Division Engineer or his designee renders a final appeal decision, unless the Review Officer undertook a site visit, in which case the final appeal decision is to be rendered within thirty days of the site visit. (40) This final appeal decision is stated to be final agency action under the Corps' regulations. (41) The issue then is whether this final agency action is judicially reviewable.

3. FINAL AGENCY ACTION

   The APA provides for judicial review of final agency actions. (42) Although the Corps' regulation describes a final appeal decision regarding a JD to be final agency action, that denomination cannot govern its meaning in the APA. The Supreme Court has from time to time described the necessary requirements for something to be final agency action. In Abbott Laboratories v Gardner (43) the Court said: "The cases dealing with judicial review of administrative actions have interpreted the 'finality' element in a pragmatic way." (44) First, the agency action must be definitive, the conclusion of an agency process, not tentative or informal. (45) Second, "the impact of the [agency action] upon the petitioners [must be] sufficiently direct and immediate as to render the issue appropriate for judicial review at this stage," such as having "a direct effect on the day-to-day business" of a person. (46) Twenty-five years later, the Court in Franklin v. Massachusetts (47) repeated...