Testing The Waters: The U.S. Supreme Court Agrees To Hear U.S. Army Corps' Clean Water Act Determinations Challenge

On Friday, the U.S. Supreme Court agreed to hear a challenge to the Eighth Circuit's April 2015 ruling that U.S. Army Corps of Engineers' ("Army Corps") jurisdictional determinations are final agency actions subject to judicial review. The Eighth Circuit's decision is contrary to a July 2014 Fifth Circuit ruling and thus created a circuit split. The Supreme Court's decision could resolve that split and settle the question of whether parties may challenge Army Corps' jurisdictional determinations.

Many types of development projects may impact "waters of the U.S." under the Clean Water Act (CWA). Such activities might therefore be subject to the Army Corps' requirements for permitting and implementation of mitigation measures. Whether "waters of the U.S." may be impacted by a project is often far from clear, so project developers and property owners frequently request jurisdictional determinations from the Army Corps before proceeding with a project. The Army Corps' long-standing position is that its jurisdictional determinations are not judicially reviewable final decisions since a party is not required to act or refrain from acting based solely on the decision. Rather, the Army Corps has taken the position that a party's rights are not affected until a party is either denied a permit or subject to enforcement proceedings for acting without a permit. Developers and property owners have long struggled with this position, since a party must either go through the time intensive and costly permitting process before being able to seek review of the underlying jurisdictional decision, or choose to act without a permit and then possibly be subject to enforcement proceedings.

The Fifth Circuit Decision

In Belle Co. LLC et al. v. U.S. Army Corps of Engineers, 761 F.3d 383 (5th Cir. 2014), the Army Corps had issued a jurisdictional determination that a portion of the property in question was a "water of the U.S."

On appeal to the Fifth Circuit, the Court decided that the Army Corps' jurisdictional determinations are not final agency actions subject to judicial review, but are simply "notifications" regarding a property's classification. The Fifth Circuit explained that for an agency action to be final it must: 1) be the "consummation of the agency's decisionmaking", and 2) the action must be a vehicle "by which rights or obligations have been determined, or from which legal consequences will flow." The Fifth Circuit ruled that although jurisdictional...