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Hawkes v. U.S. Army Corps of Engineers: Is a Wetlands Jurisdictional Determination Reviewable Under the Administrative Procedure Act?

April 2016

Citation: 46 ELR 10291

Issue: 4

Author: Chris Dow

On March 30, 2016, the U.S. Supreme Court heard oral argument in Hawkes Co. v. U.S. Army Corps of Engineers. This case from the U.S. Court of Appeals for the Eighth Circuit asks whether a wetlands jurisdictional determination (JD)—the U.S. Army Corps of Engineers’ official stance on whether a wetlands areas is subject to Clean Water Act  §404 permitting requirements—constitutes a final agency action that is subject to judicial challenge under the Administrative Procedure Act. Currently, there is a circuit split on this issue: The Eighth Circuit in Hawkes ruled that a JD is immediately reviewable under the APA, while the U.S. Court of Appeals for the Fifth Circuit and the U.S. Court of Appeals for the Ninth Circuit. Notwithstanding the respective merits of the policy arguments on either side, an analysis of case law considering reviewability under the APA of government administrative determinations in the environmental regulatory arena suggests that a JD is not a proper subject of judicial review.

Chris Dow is an environmental attorney in San Francisco, California, with experience in wetlands permitting issues.

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