On April 10, 2015, in Hawkes v. US Army Corps of Engineers, the US Court of Appeals for the Eighth Circuit became the first circuit to hold that a jurisdictional determination made by the US Army Corps of Engineers under the Clean Water Act (CWA) was subject to immediate judicial review ( (8th Cir. Apr. 10, 2015)).

Hawkes Co. obtained an option to purchase property it wished to use for mining peat, a "wetland dependant" activity, subject to agency approval. Hawkes then contacted the US Army Corps of Engineers for a jurisdictional determination.

The CWA requires a permit from the Corps for the discharge of dredged or fill material into navigable waters (33 U.S.C. § 1311(a)). The Corps issues jurisdictional determinations to aid property owners in ascertaining whether their property contains or abuts navigable waters and is therefore subject to the Corps's enforcement.

After contested proceedings that lasted several years, the Corps eventually issued a revised jurisdictional determination that Hawkes's property contained navigable waters requiring a permit under the CWA.

Hawkes filed an action in the district court seeking review of the revised jurisdictional determination. The district court dismissed the complaint, holding that the determination was not a final agency action and therefore judicial review was unavailable at that time. Hawkes appealed.

The Eighth Circuit identified the two conditions that must be satisfied for an agency action to be considered final and therefore subject to judicial review under the Administrative Procedure Act (5 U.S.C. § 704). The action must:

The court agreed with the district court that the revised jurisdictional determination was the consummation of the Corps's decision-making process. However, the court differed from the district court's holding that the second condition was satisfied as well. The court found that the revised jurisdictional determination required Hawkes to either:

The court reasoned that any other remedies available to property owners looking to challenge the Corps's determinations were prohibitively expensive and time-consuming. Since landowners had no other adequate remedy, the Corps's decisions would be essentially unchallenged without immediate judicial review, leaving the property owners in an unfairly powerless position.

The court reversed the district court, holding that the Corps's jurisdictional determinations must be subject to immediate judicial review.

This case allows property owners to challenge the Corps's jurisdictional determinations under the CWA without waiting for the agency to bring an enforcement action. This holding is advantageous to property owners in the Eighth Circuit who disagree with a jurisdictional determination by the Corps, as they previously were forced either to obtain a permit or risk the penalties of noncompliance while waiting for the opportunity to appeal.

This ruling also directly contradicts a recent US Court of Appeals for the Fifth Circuit opinion in Belle Company, LLC v. US Army Corps of Engineers, setting the stage for potential US Supreme Court review (761 F.3d 383 (5th Cir. 2014))?

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