Muddying the Water, Clearing the Way . . . for Judicial Review of Clean Water Act Jurisdictional Determinations: Hawkes Co. v. U.s. Army Corps of Engineers, 782 F.3d 994 (8th Cir. 2015)

• Publication year: 2021
• Citation: Vol. 95

95 Nebraska L. Rev. 277. Muddying the Water, Clearing the Way . . . for Judicial Review of Clean Water Act Jurisdictional Determinations: Hawkes Co. v. U.S. Army Corps of Engineers, 782 F.3d 994 (8th Cir. 2015)

Muddying the Water, Clearing the Way . . . for Judicial Review of Clean Water Act Jurisdictional Determinations: Hawkes Co. v. U.S. Army Corps of Engineers, 782 F.3d 994 (8th Cir. 2015)(fn*)

Taylor Fritsch

TABLE OF CONTENTS

I. Introduction .......................................... 278

II. Background ........................................... 282
A. The Clean Water Act's Jurisdictional Uncertainty . . 283
B. Recent Regulatory Action .......................... 285
C. Issues ............................................. 287
D. "Final Agency Action" ............................. 288
1. The Bennett Test of Final Agency Action ....... 288
2. Sackett v. EPA Opens the Door ................ 289
E. Ripeness .......................................... 289

III. Hawkes Co. v. U.S. Army Corps of Engineers .......... 290
A. Facts and Administrative History .................. 290
B. District Court Decision ............................ 291
C. Eighth Circuit's Opinion and Holding .............. 293
D. Judge Kelly's Concurring Opinion .................. 295

IV. Analysis .............................................. 296
A. Supreme Court Review of Hawkes Co. . ............ 296
B. Revisiting Hawkes Co. in the Supreme Court ...... 298
1. Sackett Controls ............................... 299
a. Applying the First Prong of the Bennett Test ....................................... 299

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b. Applying the Second Prong of the BennettTest ....................................... 300
c. Sackett Contemplates Jurisdictional Determinations ............................ 302
2. The Supreme Court's Finality Jurisprudence Has Always Embraced a Pragmatic Approach .. 303
3. Allowing Judicial Review is Consistent with the Legislative History of the APA ................. 305

V. Conclusion ............................................ 306

I. INTRODUCTION

By the late 1960s, the waters of the United States were in an environmental crisis.(fn1) To put it lightly, governmental intervention to stop a downward spiral of environmental degradation was becoming increasingly necessary.(fn2) To frame it in more dire (and perhaps, more accurate) terms, the need for significant environmental legislation addressing surface water quality had become the most pressing public health issue of a generation.(fn3)

The infamous burning of northeast Ohio's Cuyahoga River on June 22, 1969, in Cleveland sparked public concern for the state of the nation's waterways, and galvanized public interest in environmental protection efforts.(fn4) On that date, a fire broke out on the river when

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"oil-soaked debris" floating on the river's surface ignited.(fn5) The fire was extinguished in thirty minutes and lead to less than $50,000 in damage, but caused Cleveland considerable public embarrassment.(fn6) Despite the attention it brought to the Cuyahoga's environmental degradation, the 1969 burning was not an isolated or novel event. There were, in fact, thirteen fires on the Cuyahoga beginning around 1868.(fn7) The largest Cuyahoga fire had occurred seventeen years earlier, in 1952, causing damages topping $1 million.(fn8) Perhaps worse than the flammable floating milieu of debris, entire stretches of the Cuyahoga were entirely devoid of fish in the 1950s and 1960s.(fn9)

Congress responded to water pollution problem by passing the Federal Water Pollution Control Act Amendments of 1972,(fn10) popularly known as the Clean Water Act (CWA).(fn11) Among the CWA's ambitious goals were to eliminate "discharge of pollutants" into navigable waterways by 1985; achieve water quality that protects fish, shellfish, and wildlife and allows for recreation "in and on the water" wherever possible by July 1983; and to expedite creation of programs to control non-point sources of pollution.(fn12)

Today, the Cuyahoga is billed as a success story. More than forty-five years after the 1969 fire on the Cuyahoga and forty years after passage of the CWA, there has been considerable improvement in the

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river's water quality.(fn13) The Cuyahoga turnaround is just one example of significant environmental improvement in U.S. waters. The CWA is now credited with reducing discharge of pollutants into the nation's waters, leading to significant water quality enhancements.(fn14) As of 2004, discharge of organic wastes from municipal waste treatment facilities dropped 46%, and similar discharges from industry sources have dropped by an astounding 98%.(fn15) Progress in industrialized urban areas has been the most dramatic, as these areas have benefitted the most from the CWA's permitting of point source discharge.(fn16) Annual wetlands loss-presumably from activities including depositing fill materials-fell 77% by 1997 from average annual losses in the mid-1970s to 1980s (calculated as a decade-long average).(fn17) Of the three "iconic statutes" of environmental reform, the Clean Air Act of 1970(fn18), National Environmental Policy Act of 1969(fn19), and the Clean Water Act, many environmental law experts believe that the CWA was the "best designed and most artfully drafted."(fn20)

However, according to some commentators, continued progress will require more aggressive control of non-point source pollution and wetlands degradation.(fn21) Most observers believe the EPA has not

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achieved its stated policy goal of "no net loss" of wetlands(fn22) for various reasons, including limitations on jurisdiction inherent in the CWA.(fn23)

In Hawkes Co. v. U.S. Army Corps of Engineers,(fn24) the Eighth Circuit Court of Appeals considered whether judicial review was available immediately following an adverse CWA jurisdictional determination concluding that the Hawkes Co. property constituted wetlands subject to Army Corps of Engineers (the Corps) regulation.(fn25) Resolution of that question first required the court to decide whether a jurisdictional determination made by the Army Corps of Engineers under the CWA is a "final agency action" for which judicial review is available under section 704 of the Administrative Procedure Act.(fn26) Second, the court had to decide the related-but distinct-question of whether the claim was ripe for judicial review.(fn27) In a unanimous judgment,(fn28) the Eighth Circuit panel held that: (1) a jurisdictional determination was a final agency action within the meaning of Section 704; and (2) plaintiff Hawkes Co.'s claim was ripe for review. Notably, this decision conflicted with the Fifth Circuit's decision in Belle Co. v. U.S. Army Corps of Engineers(fn29)-rendered during pendency of the Hawkes Co. appeal on nearly identical facts(fn30)-and the Ninth Circuit's decision in Fairbanks North Star Borough v. U.S. Army Corps of Engineers.(fn31)

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This Note will analyze the Eighth Circuit's holding in Hawkes Co. in light of the Supreme Court's existing jurisprudence, focusing its attention on the Section 704 finality issue, since the Eighth Circuit concluded that justiciability analysis was coextensive with the analysis it completed to resolve the finality issue.(fn32) This Note concludes that the Eighth Circuit correctly held that judicial review was available in Hawkes Co.

To facilitate an understanding of the practical implications of the Hawkes Co. decision, Part II of this Note explores jurisdiction under the CWA, including recent EPA rulemaking efforts which have been met with resistance from diverse areas of industry. Further, Part II also examines the availability of judicial review of agency actions under the Administrative Procedure Act, including relevant Supreme Court precedents on what constitutes a "final agency action" under Section 704.

Part III will turn to the Hawkes Co. case, discussing the facts of the case, the district court's ruling, the case's procedural posture on appeal, and the majority opinion. Judge Kelly's concurring opinion, which raises compelling points regarding the legal doctrine at work in the Hawkes Co. case is also discussed.

Finally, Part IV argues that the Supreme Court was justified in its decision to grant certiorari to resolve the core issue of finality in the Hawkes Co. case, and that the Court should avoid a 4-4 decision which would leave the conflict between the circuit courts unresolved. Further, this Note takes the position that the Court should explicitly extend its holding in Sackett v. EPA(fn33) to cover threshold determinations of jurisdiction, making judicial review of adverse jurisdictional determinations immediately available to property owners.

II. BACKGROUND

While this Note will focus its attention and analysis on the procedural issues inherent in landowner challenges to jurisdictional determinations under the CWA, an understanding of the underlying jurisdictional controversy adds depth and context for understanding the practical impact of these administrative challenges.(fn34)

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A. The Clean Water Act's Jurisdictional Uncertainty

The provisions of the CWA generally apply to the "navigable waters" of the United States.(fn35) Of course, "navigable waters" takes a different meaning today than it did in the Clean Water Act's predecessor statute. "Navigable waters" no longer means "navigable in fact or readily susceptible of being rendered so," as had been the interpretation of that phrase in the Clean Water Act's predecessor statute.(fn36) Section 502(7) of the CWA defines navigable waters to include all "waters of the United States, including the territorial seas."(fn37) The meaning of this phrase, and in turn the extent of the CWA's reach, has been the subject of significant disputes.(fn38)

While uncertainty still remains, the meaning of "waters of the United States" has been...