In a decision with the potential to significantly reduce the time, uncertainty, and expense of development on land with disputed wetlands-designations, the U.S. Supreme Court held an approved jurisdictional delineation by the U.S. Army Corps of Engineers (Corps) may be challenged in court under the Administrative Procedure Act (APA) as a “final agency action,” without the landowner first obtaining a decision on a permit to fill under the federal Clean Water Act (CWA) § 404. [U.S. Army Corps of Engineers v. Hawkes Co. Inc., ___U.S.___, Case No. 15-290 (May 31, 2016).

The Supreme Court’s analysis focused on whether the “definitive nature of approved” jurisdictional delineations give rise to “direct and appreciable legal consequences”—the second prong under Bennett v. Spear, 520 U.S. at 178. The Court concluded that a “negative” jurisdictional delineation—i.e., one concluding there were no water of the United States” on the land at issue—creates a five-year “safe harbor” from enforcement actions by both agencies, and conversely a delineation asserting federal jurisdiction over wetlands denies the benefit of a safe harbor.

The Court cited the “arduous, expensive and long” permit process in rejecting the requirement that a 404 permit be sought, observing in addition that “whatever pertinence” the extensive additional analysis required in the permitting process “might have to the issuance of a permit, none of it will alter the finality of the approved” jurisdictional delineation, or affect its suitability for judicial review.”

The majority’s reliance on the memorandum may be functioning as a signal to the agencies of the Court’s desire to see greater certainty for landowners regarding the extent of Corps jurisdiction
(Deborah Quick)