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Saturday, June 15, 2024 | Back issues
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Supreme Court to Take on Clean Water Act Case

(CN) - The U.S. Supreme Court on Friday agreed to consider whether courts have the right to review U.S. Army Corps of Engineers' determinations about whether a body of water is subject to its authority under the Clean Water Act.

The Justices are taking up the case, U.S. Army Corps of Engineers v. Hawkes Co., Inc., at the request of the Corps which is appealing an Eighth Circuit ruling that such determinations are final agency actions that can be reviewed by the courts under the Administrative Procedure Act.

The case revolves around 520 acres that the Hawkes Company would like to mine for peat, which is formed in wetlands. The company has a similar, existing peat mining operation nearby, and it entered into an agreement to pay royalties to the property owners for the use of their land.

In February 2012, the Corps provided Hawkes with an approved jurisdictional determination which concluded that the property contains waters of the United States. Hawkes and the property owners filed an administrative appeal, arguing the agency had failed to do sufficient analysis to support a finding a regulatory jurisdiction.

On reconsideration, the Corps issued a revised jurisdictional determination that explained the property contained 150 acres of wetlands that flowed directly or indirectly into navigable waters and therefore, the acreage fell under watch.

Hawkes and the property owners sued, but a district court dismissed the case, holding that the Corp's jurisdictional determination was not a final agency action, and therefore was not challengeable in court.

Hawkes appealed, and the Eighth Circuit reversed, holding that a jurisdictional determination is a reviewable final agency action under the Administrative Procedures Act. In reaching this conclusion, the three-judge panel acknowledged their ruling conflicted with an earlier determination by the Fifth Circuit (Bell Co. v. United States Army Corps of Engineers), but said it believed the early appellate ruling was wrong, being based on an erroneous interpretation of Supreme Court precedent.

The ruling also conflicts with a Ninth Circuit ruling, Fairbanks North Star Borough v. U.S. Army Corps. of Engineers.

Hawkes and the property owners also asked the Justices to take on the case, in large part to resolve that three-way split among the circuits.

As is their custom, the justices did not explain their rationale for taking the case. In doing so they also granted a request for leave to file an amicus curiae brief from the National Association of Home Builders.

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