## Facts

- The Clean Water Act (CWA) prohibits discharges of dredged or fill material into “waters of the United States” without a § 404 permit, exposing violators to substantial civil and criminal penalties.
- The U.S. Army Corps of Engineers (Corps) issues “jurisdictional determinations” (JDs) stating whether specified property contains waters subject to CWA jurisdiction.
- An “approved JD” represents the Corps’ definitive position, is binding on the Corps and EPA, and remains effective for five years.
- Hawkes Co. and related peat-mining entities sought to mine peat in Marshall County, Minnesota, and pursued a § 404 permit in connection with planned discharges affecting wetlands.
- The Corps issued an approved JD concluding the property contained jurisdictional wetlands based on a “significant nexus” to the Red River of the North (approximately 90–120 miles away).
- Hawkes pursued the Corps’ administrative appeal process, which largely upheld the approved JD.
- Hawkes then sued under the Administrative Procedure Act (APA) seeking judicial review of the approved JD.

## Issues

1. Whether an approved JD determining that property contains “waters of the United States” constitutes “final agency action” under APA § 704.
2. Whether there is “no other adequate remedy in a court” such that immediate judicial review of an approved JD is available under APA § 704.

## Decision

- The Eighth Circuit reversed the district court’s dismissal for lack of subject-matter jurisdiction.
- The court held that an approved JD is “final agency action” under the APA.
- The court held Hawkes lacked any other adequate remedy in court.
- The case was remanded for proceedings addressing the merits of the JD.

## Legal Principles

- Under APA § 704, only “final agency action for which there is no other adequate remedy in a court” is judicially reviewable.
- An agency action is “final” when (1) it marks the consummation of the agency’s decisionmaking process and (2) it determines rights or obligations or carries legal consequences.
- An approved JD satisfies consummation because it resolves a discrete jurisdictional question through the Corps’ fact-finding and is treated by the agency as final and binding for a five-year term.
- An approved JD carries legal consequences because it fixes the regulatory status of the property for five years and affects exposure to enforcement risk; a negative JD provides a five-year safe harbor from certain enforcement, while a positive JD removes that safe harbor and signals that unpermitted discharges risk severe penalties.
- Alternatives offered by the government—seeking review only after completing the § 404 permitting process or waiting for an enforcement action—are not “adequate remedies” when they impose substantial, avoidable cost and delay or require risking serious penalties to obtain judicial review.
- A JD is reviewable even if it precedes a permit decision, because it is a separate, antecedent determination that binds the agencies for its effective period.

## Conclusion

The Eighth Circuit held that an approved Clean Water Act jurisdictional determination is an immediately reviewable final agency action under the APA because it is the Corps’ definitive, binding position with concrete legal consequences and because landowners otherwise lack an adequate judicial remedy.


Hawkes Co. v. U.S. Army Corps of Eng’rs, 782 F.3d 994 (8th Cir. 2015)