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.
