The U.S. Supreme Court ruled on May 31 in United States Army Corps of Engineers v. Hawkes Co., Inc.[1] that final decisions by the Army Corps of Engineers (“Corps”) concerning the limits of its jurisdiction under the Clean Water Act can be challenged in court.

The Clean Water Act (“Act”) regulates the discharge of pollutants or fill into the “waters of the United States,” including wetlands.  The dredging of wetlands is also regulated.  Various activities conducted in areas under the jurisdiction of the Act require a permit from the Corps.  Knowing whether part of your property qualifies as “waters of the United States” and is subject to the Act or not is important.  A property owner who does regulated work without a permit violates the Act, and they may be subject to criminal and civil penalties.  Also, going through the permitting process can be expensive and time-consuming.  So unnecessarily pursuing a permit for work outside the reach of Clean Water Act jurisdiction is typically something property owners would like to avoid.

The Corps specifies whether a particular activity requires a Clean Water Act permit by issuing “jurisdictional determinations” on a case-by-case basis.  There are two types of jurisdictional determinations – “preliminary” and “approved.”  An approved jurisdictional determination is a final action that is binding on the Corps and the Environmental Protection Agency for five years.  The issue before the Hawkes court was whether the Corps jurisdictional determination may be challenged in court.

In the Hawkes case, the property owners challenging the Corps are three peat-mining companies in Minnesota that own 530 acres of land that contain wetlands.  In December 2010, the companies applied to the Corps for a permit for activities related to their mining operations.  As part of the permitting process, the Corps issued a jurisdictional determination that wetlands on the land were subject to Clean Water Act jurisdiction.  The companies appealed that decision internally at the Corps and had a small victory at first when the hearing officer told the Corps to reconsider its decision.  Upon reconsideration, the Corps reached the same original conclusion that the wetlands were subject to Clean Water Act jurisdiction and permit requirements.

The companies filed a lawsuit in federal court to challenge the Corps’ second jurisdictional determination.  The district court decided that it would not even hear the case, on the grounds that the revised jurisdictional determination was not a final agency action that can be appealed to court.  The 8th Circuit Court of Appeals reversed the decision, thus allowing the companies to challenge the jurisdictional determination in court, and the Supreme Court upheld the decision of the Court of Appeals.

In making this decision, the Supreme Court recognized the importance of ensuring a land owner’s right to access the courts to challenge the jurisdiction of the Corps under the Clean Water Act.  Importantly, the decision means that the Corps does not have the final say if a property owner believes the Corps incorrectly determined that certain land is subject to Clean Water Act jurisdiction.

[1] United States Army Corps of Engineers v. Hawkes Co., Inc., 578 U.S. __ (2016).