Supreme Court Rules CWA Jurisdictional Determinations are Subject to Judicial Review



The US Army Corps of Engineers (USACE) evokes its responsibility for determining whether a parcel of land has "waters of the United States," or "navigable waters" that are in turn protected by the Clean Water Act (jurisdictional waters). The USACE makes these judgments by issuing approved jurisdictional determinations (JDs). Limits of jurisdiction included in approved JD’s determine whether property owners need additional permits prior to any deposit of fill or dredging on wetlands. Such processes can often be long, expensive and arduous.

On May 31, 2016, the Supreme Court of the United States ruled that USACE-issued JDs can be challenged in court, upholding the U.S. Court of Appeals which ruled JDs, as "final agency actions" or federal agency rulings under the federal Administrative Procedure Act, are subject to judicial review.

In USACE v. Hawkes Co., the Corps determined that Hawkes Mining’s Minnesota property had areas protected by the Clean Water Act, requiring the company to undergo an extensive permitting process to use the land. Hawkes challenged the determination, arguing that the judgment would cost the company hundreds of thousands of dollars.

The Supreme Court agreed, finding that because the Clean Water Act "imposes substantial criminal and civil penalties for discharging any pollutant into waters covered by the Act without a permit from the Corps," it should allow the checks and balances provided by a court.

While USACE v. Hawkes Co. was specifically procedural, the Supreme Court's decision has the potential to impact the strength of the Clean Water Act. Because the court determined that JDs are in fact like other federal agency actions, and can thus be challenged in court, it opens the door for more companies to challenge USACE determinations. This is not the first time the Clean Water Act has been questioned in the Supreme Court, and it likely won't be the last.