U.S. Army Corps of Eng'rs v. Hawkes Co.

Citation136 S.Ct. 1807,195 L.Ed.2d 77
Decision Date31 May 2016
Docket NumberNo. 15–290.,15–290.
CourtUnited States Supreme Court

David R. Cooper, Chief Counsel, United States Army, Corps of Engineers, Washington, DC, Donald B. Verrilli, Jr., Solicitor General, John C. Cruden, Assistant Attorney General, Malcolm L. Stewart, Deputy Solicitor General, Ginger D. Anders, Assistant to the Solicitor General, Aaron P. Avila, Jennifer Scheller Neumann, Robert J. Lundman, Attorneys, Department of Justice, Washington, DC, for petitioner.

Nancy Quattlebaum Burke, Gregory R. Mertz, of counsel, Gray Plant Mooty, Minneapolis, MN, M. Reed Hopper, Pacific Legal Foundation, Sacramento, CA, Mark Miller, Pacific Legal Foundation, Palm Beach Gardens, FL, for respondents.

Chief Justice ROBERTS

delivered the opinion of the Court.

The Clean Water Act regulates the discharge of pollutants into "the waters of the United States." 33 U.S.C. §§ 1311(a)

, 1362(7), (12). Because it can be difficult to determine whether a particular parcel of property contains such waters, the U.S. Army Corps of Engineers will issue to property owners an "approved jurisdictional determination" stating the agency's definitive view on that matter. See 33 CFR § 331.2 and pt. 331, App. C (2015). The question presented is whether that determination is final agency action judicially reviewable under the Administrative Procedure Act, 5 U.S.C. § 704.


The Clean Water Act prohibits "the discharge of any pollutant" without a permit into "navigable waters," which it defines, in turn, as "the waters of the United States." 33 U.S.C. §§ 1311(a)

, 1362(7), (12). During the time period relevant to this case, the U.S. Army Corps of Engineers defined the waters of the United States to include land areas occasionally or regularly saturated with water—such as "mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, [and] playa lakes"—the "use, degradation or destruction of which could affect interstate or foreign commerce." 33 CFR § 328.3(a)(3) (2012). The Corps has applied that definition to assert jurisdiction over "270–to–300 million acres of swampy lands in the United States—including half of Alaska and an area the size of California in the lower 48 States."

Rapanos v. United States, 547 U.S. 715, 722, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006)

(plurality opinion).1

It is often difficult to determine whether a particular piece of property contains waters of the United States, but there are important consequences if it does. 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. See 33 U.S.C. §§ 1311(a)

, 1319(c), (d), 1344(a). The costs of obtaining such a permit are significant. For a specialized "individual" permit of the sort at issue in this case, for example, one study found that the average applicant "spends 788 days and $271,596 in completing the process," without "counting costs of mitigation or design changes." Rapanos, 547 U.S., at 721, 126 S.Ct. 2208. Even more readily available "general" permits took applicants, on average, 313 days and $28,915 to complete. Ibid. See generally 33 CFR § 323.2(h) (limiting "general" permits to activities that "cause only minimal individual and cumulative environmental impacts").

The Corps specifies whether particular property contains "waters of the United States" by issuing "jurisdictional determinations" (JDs) on a case-by-case basis. § 331.2

. JDs come in two varieties: "preliminary" and "approved." Ibid. While preliminary JDs merely advise a property owner "that there may be waters of the United States on a parcel," approved JDs definitively "stat[e] the presence or absence" of such waters. Ibid. (emphasis added). Unlike preliminary JDs, approved JDs can be administratively appealed and are defined by regulation to "constitute a Corps final agency action." §§ 320.1(a)(6), 331.2. They are binding for five years on both the Corps and the Environmental Protection Agency, which share authority to enforce the Clean Water Act. See 33 U.S.C. §§ 1319, 1344(s) ; 33 CFR pt. 331, App. C ; EPA, Memorandum of Agreement: Exemptions Under Section 404(F) of the Clean Water Act § VI–A (1989) (Memorandum of Agreement).


Respondents are three companies engaged in mining peat in Marshall County, Minnesota. Peat is an organic material that forms in waterlogged grounds, such as wetlands and bogs. See Xuehui & Jinming, Peat and Peatlands, in 2 Coal, Oil Shale, Natural Bitumen, Heavy Oil and Peat 267–272 (G. Jinsheng ed. 2009) (Peat and Peatlands). It is widely used for soil improvement and burned as fuel. Id., at 277. It can also be used to provide structural support and moisture for smooth, stable greens that leave golfers with no one to blame but themselves for errant putts. See Monteith & Welton, Use of Peat and Other Organic Materials on Golf Courses, 13 Bulletin of the United States Golf Association Green Section 90, 95–100 (1933). At the same time, peat mining can have significant environmental and ecological impacts, see Peat and Peatlands 280–281, and therefore is regulated by both federal and state environmental protection agencies, see, e.g., Minn.Stat. § 103G.231 (2014)


Respondents own a 530–acre tract near their existing mining operations. The tract includes wetlands, which respondents believe contain sufficient high quality peat, suitable for use in golf greens, to extend their mining operations for 10 to 15 years. App. 8, 14–15, 31.

In December 2010, respondents applied to the Corps for a Section 404 permit for the property. Id., at 15. A Section 404 permit authorizes "the discharge of dredged or fill material into the navigable waters at specified disposal sites." 33 U.S.C. § 1344(a)

. Over the course of several communications with respondents, Corps officials signaled that the permitting process would be very expensive and take years to complete. The Corps also advised respondents that, if they wished to pursue their application, they would have to submit numerous assessments of various features of the property, which respondents estimate would cost more than $100,000. App. 16–17, 31–35.

In February 2012, in connection with the permitting process, the Corps issued an approved JD stating that the property contained "water of the United States" because its wetlands had a "significant nexus" to the Red River of the North, located some 120 miles away. Id., at 13, 18, 20. Respondents appealed the JD to the Corps' Mississippi Valley Division Commander, who remanded for further factfinding. On remand, the Corps reaffirmed its original conclusion and issued a revised JD to that effect. Id., at 18–20; App. to Pet. for Cert. 44a–45a.

Respondents then sought judicial review of the revised JD under the Administrative Procedure Act (APA), 5 U.S.C. § 500 et seq.

The District Court dismissed for want of subject matter jurisdiction, holding that the revised JD was not "final agency action for which there is no other adequate remedy in a court," as required by the APA prior to judicial review, 5 U.S.C. § 704. 963 F.Supp.2d 868, 872, 878 (Minn.2013). The Court of Appeals for the Eighth Circuit reversed, 782 F.3d 994, 1002 (2015), and we granted certiorari, 577 U.S. ––––, 136 S.Ct. 615, 193 L.Ed.2d 495 (2015).


The Corps contends that the revised JD is not "final agency action" and that, even if it were, there are adequate alternatives for challenging it in court. We disagree at both turns.


In Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997)

, we distilled from our precedents two conditions that generally must be satisfied for agency action to be "final" under the APA. "First, the action must mark the consummation of the agency's decisionmaking process—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow." Id., at 177–178, 117 S.Ct. 1154 (internal quotation marks and citation omitted).2

The Corps does not dispute that an approved JD satisfies the first Bennett condition. Unlike preliminary JDs—which are "advisory in nature" and simply indicate that "there may be waters of the United States" on a parcel of property, 33 CFR § 331.2

—an approved JD clearly "mark[s] the consummation" of the Corps' decisionmaking process on that question, Bennett, 520 U.S., at 178, 117 S.Ct. 1154 (internal quotation marks omitted). It is issued after extensive factfinding by the Corps regarding the physical and hydrological characteristics of the property, see U.S. Army Corps of Engineers, Jurisdictional Determination Form Instructional Guidebook 47–60 (2007), and is typically not revisited if the permitting process moves forward. Indeed, the Corps itself describes approved JDs as "final agency action," see 33 CFR § 320.1(a)(6)

, and specifies that an approved JD "will remain valid for a period of five years," Corps, Regulatory Guidance Letter No. 05–02, § 1(a), p. 1 (June 14, 2005) (2005 Guidance Letter); see also 33 CFR pt. 331, App. C.

The Corps may revise an approved JD within the five-year period based on "new information." 2005 Guidance Letter § 1(a), at 1. That possibility, however, is a common characteristic of agency action, and does not make an otherwise definitive decision nonfinal. See Sackett v. EPA, 566 U.S. ––––, ––––, 132 S.Ct. 1367, 1372, 182 L.Ed.2d 367 (2012)

; see also National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967, 981, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005). By issuing respondents an approved JD, the Corps for all practical purposes "has ruled definitively" that respondents' property contains jurisdictional waters. Sackett, 566 U.S., at ––––, 132 S.Ct., at 1374–1375 (GINSBURG, J., concurring).

The definitive nature of approved JDs also gives rise to "direct and appreciable legal...

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