On May 31, 2016 the U.S. Supreme Court ruled unanimously in United States Army Corp of Engineers v. Hawkes that an approved jurisdictional determination (JD) stating that a property contains “waters of the United States (WOTUS)” amounts to final agency action and may be immediately reviewed in court. The State and Local Legal Center (SLLC), of which NACo is a member, filed an amicus brief arguing in support of this result, which allows counties and other property owners to challenge an unfavorable JD before having to go through a costly permitting process in order to proceed with a project. The amicus brief was also filed on behalf of the Council of State Governments (CSG), National League of Cities (CSG), United States Conference of Mayors (USCM), International City/County Management Association (ICMA) and the International Municipal Lawyers Association (IMLA).

The Supreme Court ruled that, because a JD from the U.S. Army Corps of Engineers (Corps) impacts the “rights and obligations” of property owners and local regulators and carries with it legal consequences, and because a JD marks the consummation of the Corps’ decision-making process as to whether a property contains WOTUS, it is considered a final agency action eligible for judicial review.

The SLLC’s amicus brief argued that states and local governments would be negatively affected as landowners and as partners with the business community if immediate judicial review of JDs were not possible. Under the CWA, property owners are required to obtain a permit from the Corps before discharging dredged or fill material into “waters of the United States” (WOTUS). Because it is not always easy to determine whether particular waters are WOTUS and subject to the CWA, the Corp offers JDs to property owners seeking clarification before starting the permitting process.

Without this ruling, counties that disagreed with a JD related to a particular project would only have two options: either the county would have to go through the 404 permit process or proceed with the project and risk facing civil penalties under the Clean Water Act (CWA). Both options would potentially increase project costs and hinder economic development and capital infrastructure planning. 

In the Hawkes case, the Hawkes Company wanted to mine peat from its wetland property in Minnesota. The Corps issued a JD that the property contained WOTUS because its wetlands had a “significant nexus” to a river located about 120 miles away. As a result, the Hawkes Company would have had to obtain a costly and time-consuming permit to start mining unless the JD could be overturned by a court review. The Hawkes Company sought judicial review. The Corps had countered that judicial review was not available because a JD only amounted to advice to provide additional understanding of the application of the law rather than final agency action. The Court disagreed, noting in its decision that the Corps itself describes such determinations as a final agency action in their general regulatory policies (33 CFR 320.1).

NACo applauds the Court’s decision and will continue to monitor any other developments related to “waters of the United States.”

Resources:

• To read the SLLC’s Amicus Brief on behalf of Hawkes Co., Inc., click here.

Contact: Julie Ufner at jufner@naco.org or 202.942.4269 or Mike Belarmino at mbelarmino@naco.org or 202.942.4254.