• Supreme Court Confirms Immediate Judicial Review of Approved Jurisdictional Wetland Delineations
  • August 22, 2016
  • Law Firm: Morris Polich Purdy LLP - Los Angeles Office
  • The Supreme Court wrote the latest chapter in the Waters of the United States book in United States Army Corps. of Engineers v. Hawkes Co., Inc. (2016) 136 S.Ct. 1807. At issue in Hawkes is whether approved jurisdictional wetlands delineations (“JDs,” not to be confused with the degrees issued by law schools) were final agency action that were, as such, subject to immediate judicial review. In JDs, the United States Army Corps of Engineers (USACE) determines the existence (or not) of a wetland. The affirmative finding, i.e., congratulations! It’s a wetland!, gives USACE jurisdiction over the discharge of pollutants into the wetland. (The Clean Water Act, 33 U.S.C. §§1311(a), 1362(7), and 1362(12).) That jurisdiction means that unless USACE approves a subsequent permit application and thus issues a permit allowing the desired discharge into the wetland, any discharge into the wetland is a violation of the Clean Water Act—even if the wetland is contained within private property as it was in Hawkes. JDs come in two flavors: preliminary (you may have a wetland) and approved (yup, you’ve got a wetland).