Special Topics in Environmental Management

Supreme Court: CWA JD Is Final Agency Action

In a ruling with no dissent—although several brief, separate, concurring opinions were filed—the U.S. Supreme Court found that an approved jurisdictional determination (JD) by the U.S. Army Corps of Engineers (Corps) about the Clean Water Act (CWA) status of a property is a final agency action subject to judicial review.

The ruling opens up avenues of legal recourse to parties that are informed by the Corps that a property they wish to develop is subject to CWA permitting because it is a water of the United States (WOTUS).
The Corps’s position in the case was that an approved JD was not a final agency action and therefore was not judicially reviewable. Also, argued the Corps, the property owner still could take either of two actions: (1) Develop the property without a permit and then go to Court if the EPA took CWA enforcement action; or (2) expend significant time and money to obtain a permit and challenge that in Court if dissatisfied with the results. In writing for the Court, Chief Justice John Roberts said that these may be alternatives, but they are hardly reasonable.

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