## Facts

- Hawkes Co., Inc. and affiliated companies sought to mine peat in Marshall County, Minnesota.
- The Clean Water Act (CWA) requires a permit under § 404 for discharges into “waters of the United States” (WOTUS).
- The U.S. Army Corps of Engineers offers jurisdictional determinations (JDs) stating whether a property contains WOTUS; an “approved” JD definitively states presence or absence, binds the Corps and EPA for five years, and is treated by the agency as final for administrative purposes.
- The Corps issued Hawkes an approved JD concluding the property contained WOTUS because wetlands on the site had a “significant nexus” to the Red River of the North, about 120 miles away.
- The JD subjected Hawkes to the CWA permitting regime and exposed it to substantial civil and criminal penalties for unpermitted discharges.

## Issues

1. Whether an approved CWA jurisdictional determination is “final agency action” reviewable under the Administrative Procedure Act (APA), 5 U.S.C. § 704.
2. Whether affected landowners have “no other adequate remedy in a court” such that immediate APA review is available.

## Decision

- The Supreme Court affirmed the Eighth Circuit in a unanimous judgment.
- The Court held an approved JD is a reviewable “final agency action” under the APA.
- The Court held landowners need not complete the § 404 permitting process or risk enforcement penalties to obtain judicial review of an approved JD.

## Legal Principles

- Agency action is final under the APA when (1) it marks the consummation of the agency’s decisionmaking process and (2) it determines rights or obligations or produces legal consequences.
- An approved JD satisfies consummation because it follows factfinding, represents the agency’s definitive position on CWA jurisdiction for the property, and remains binding on the Corps and EPA for five years.
- An approved JD satisfies the legal-consequences requirement because it affects the landowner’s regulatory posture, including by depriving the owner of the five-year safe harbor associated with a negative JD and triggering permitting exposure.
- “Adequate remedy” under § 704 is not provided by forcing a regulated party either to (a) endure an expensive, protracted permitting process merely to contest threshold jurisdiction or (b) invite enforcement proceedings carrying serious civil and criminal penalties.

## Conclusion

The Court ruled that an approved Clean Water Act jurisdictional determination has immediate, binding legal consequences and therefore constitutes final agency action subject to judicial review under the APA, without requiring landowners to seek a permit first or risk enforcement.


U.S. Army Corps of Eng’rs v. Hawkes Co., 578 U.S. 590 (2016)