The U.S. Army Corps of Engineers often exercises its Clean Water Act (CWA) Section 404 permitting authority through administrative “jurisdictional determinations”, in which the agency usually determines whether a proposed project involves the deposit or disposal of dredge and fill material into wetlands deemed to be “waters of the United States” subject to the jurisdiction and control of the Corps of Engineers.  These determinations can be controversial, particularly when the Corps of Engineers’ authority is based upon laws, rules and administrative practices that may not be clear.  Recently, two U.S. Courts of Appeals have issued conflicting rulings with respect to the issue whether the Corps of Engineers jurisdictional determinations are “final agency rules” that can be promptly reviewed in federal court in the wake of the Supreme Court’s unanimous decision in the 2012 case of Sackett v. EPA, 132 S.C.t. 1367 (2012).  The two rulings are Belle Co. LLC v. US Army Corps of Engineers, 761 F.3d 383 (5th Cir. 2014), and Hawkes Co., Inc. v. U.S. Army Corps of Engineers, 782 F. 3d 994 (8th Cir. 2015).  These rulings take on added significance because of the new rules issued by EPA and the Corps of Engineers redefining the concept of “waters of the United States”, which is the linchpin of federal regulatory power under the CWA.  These rules were made effective on August 28, 2015, and many challenges have been filed in both federal district courts and the Court of Appeals.

In 2014, the U.S. Court of Appeals for the Fifth Circuit decided the case of Belle Co., holding that the local Corps of Engineers’ district office’s reversal of its earlier determination that the property in question was not a jurisdictional wetlands was not a final agency action warranting judicial review in the federal district courts.  The Court of Appeals held that the jurisdictional determination did not have the same severe consequences that the Supreme Court found in the EPA Administrative Compliance Order at issue in the Sackett case.  A request that the Supreme Court review this decision was initially rejected.

Then, in April 2015, the U.S. Court of Appeals for the Eighth Circuit arrived at an entirely different conclusion in the case of Hawkes Co.  The Court of Appeals held that the jurisdictional determination in theHawkes case had serious consequences for the plaintiff, and that the Corps’ determination was a final agency action subject to immediate judicial review in the federal courts.  The Supreme Court then asked the parties in the Belle Co. matter to discuss the impact of the Hawkesdecision.  These papers were filed, and on September 8, 2015, the Solicitor General filed its own petition for certiorari on the Hawkescase, asking the Court of Appeals to quickly resolve this important split in the circuits.

The Government’s petition for a writ of certiorari in the Hawkes case has been distributed to the Supreme Court for its consideration in the conference of October 9, 2015, while the still-pending Belle Co. case will be considered by the Court in its conference of September 28, 2015.  Consequently, there may be a much more rapid resolution of this circuit split than anyone may have anticipated.