Marked Victory for Businesses in the Eighth Circuit - Immediate Judicial Review Now Possible for Adverse Jurisdictional Determinations Under the Clean Water Act
The Eighth Circuit's opinion in Hawkes Co. v. U.S. Army Corps of Engineers, No.13-3067 (8th Cir. 2015) marks a substantial victory for businesses who are required to get a jurisdictional determination from the U.S. Army Corps of Engineers regarding whether projects will discharge pollutants into navigable waters. The decision sets the Eighth Circuit apart from other jurisdictions like the Fifth and Ninth Circuits which have recently found that such determinations are not "final agency actions" that may be challenged in court.
For businesses in the Fifth and Ninth Circuits, not recognizing a jurisdictional determination as a final agency action can make the permitting process even more expensive than it already is. The only way to challenge an adverse decision from the U.S. Army Corps of Engineers in those regions is to either (1) complete the entire permitting process and then seek judicial review, or (2) risk substantial enforcement penalties by conducting activities without a permit and then challenging any enforcement action taken.
In Hawkes, the Eighth Circuit recognized the unfair choice this places on businesses: "Likewise, here, the Revised JD requires appellants either to incur substantial compliance costs (the permitting process), forego what they assert is lawful use of their property, or risk substantial enforcement penalties." Id. at *8. Rejecting the legal analysis used by the Fifth and Ninth Circuits, the court remarked that deeming a jurisdictional determination to be something less than a final agency action "seriously understates the impact of the regulatory action at issue". Id.
The court criticized the Corps' continued advancement of this narrow interpretation of a final agency action:
The prohibitive costs, risk and delay of these alternatives to immediate judicial review evidence a transparently obvious litigation strategy: by leaving appellants with no immediate judicial review and no adequate alternative remedy, the Corps will achieve the result its local officers desire, abandoment of the peat mining project, without having to test whether its expansive assertion of jurisdiction -- rejected by one of their own commanding officers on administrative appeal -- is consistent with the Supreme Court's limiting decision in Rapanos.
Id. at *11. The court rejected such a strategy, holding "The Corps's assertion that the Revised JD is merely advisory and has no more effect than an environmental consultant's opinion ignores reality." Id. at *12. The court concluded that a jurisdictional determination is a final agency action and is ripe for judicial review.
The full text of the Eighth Circuit's opinion in Hawkes Co. v. U.S. Army Corps of Engineers, No.13-3067 (8th Cir. 2015) is available here.