The U.S. Supreme Court continued its keen interest in the reach of the Clean Water Act (CWA) by agreeing to hear a case about whether a jurisdictional determination (JD) by the U.S. Army Corps of Engineers (Corps) constituted a final action by the Corps. The Supreme Court will review a ruling by a panel of the U.S. Court of Appeals for the 8th Circuit, which found that the JD did constitute a final agency action. This finding directly conflicted with rulings by a district court and the 5th Circuit.
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The case centers on a JD the Corps issued in 2012 stating that a 530-acre parcel in northwestern Minnesota was a water of the United States and, therefore, subject to CWA permitting. The JD was prompted by inquiries from Hawkes Company, a business that wanted to mine peat from the parcel. Hawkes asked the Corps to reconsider the JD, arguing that the parcel did not meet the judicially established definition of a U.S. water. After the Corps denied the request, Hawkes petitioned for review in a federal district court. The Corps contended that the case was not ripe for review because the JD was not a final agency action. The district judge agreed.
With the backing of multiple industry organizations, including the American Farm Bureau, the National Association of Home Builders, and the National Mining Association, Hawkes appealed to the U.S. Court of Appeals for the 8th Circuit, which reversed the lower court ruling.