On May 31, 2016, the Supreme Court of the United States held that final determinations by the U.S. Army Corps of Engineers regarding the presence or absence of “waters of the United States” can be appealed to the courts. The case, Army Corps of Engineers v. Hawkes Co., 578 U.S. ____ (2016), is likely to lead to a profusion of lawsuits by affected parties, and also revealed a view among the Justices that the definition of “waters of the United States” reaches too far.
Background
The Clean Water Act (CWA) regulates discharges to “navigable waters,” defined as “waters of the United States, including the territorial seas.” 33 U.S.C. § 1362(7). In 1985, the Court established that the term “navigable waters” includes more than just waters that would be deemed “navigable” in the “classical” or traditional sense. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 133 (1985). But, despite several related Court decisions since then, see, e.g., Rapanos v. United States, 547 U.S. 715 (2006), Solid Waste Agency v. United States Army Corps of Eng'rs, 531 U.S. 159 (2001), the scope of the terms “navigable waters” and “waters of the United States” remains “notoriously unclear.” Sackett v. EPA, 132 S. Ct. 1367, 1375 (U.S. 2012) (Alito, J., concurring). The Corps and the U.S. Environmental Protection Agency (EPA) attempted to provide some clarity in May 2015 by issuing a new rule modifying the definition. But the new rule—commonly dubbed the WOTUS rule—remains mired in controversy, subject to challenges in federal district courts around the country and currently stayed nationwide. See In re EPA, 803 F. 804 (6th Cir. 2015).
Defining “navigable waters” and “waters of the United States” is important under several CWA programs, including those regulating discharges of dredged or fill material under Section 404 (administered jointly by the Corps and EPA), discharges of pollutants from “point sources” under Section 402 (delegated to most states for permitting under the National Pollution Discharge Elimination System, or NPDES), and spills of oil and other hazardous substances under Section 311.
Jurisdictional Determinations
While the terminology remains muddy, a project proponent can seek clarity by asking the Corps to determine whether “waters of the United States” exist within a specific project area. In response to such requests, the Corps can provide a preliminary jurisdictional determination (JD), which advises the proponent as to whether “waters of the United States” may be present, or an approved JD, which is a “definitive, official determination that there are, or that there are not, jurisdictional 'waters of the United States' on a site.” Corps, Regulatory Guidance Letter, No. 08-02 (June 26, 2008). Under the Corps' regulations, preliminary JDs are non-binding and advisory in nature and cannot be appealed, see 33 C.F.R. § 331.2, while approved JDs “constitute a Corps final agency action” and can be administratively appealed, 33 C.F.R. §§ 320.1(a)(6), 331.2. Approved JDs can be relied upon for five years. Corps, Regulatory Guidance Letter No. 05-02 (June 14, 2005).
Judicial Review
In Hawkes, the Court concluded that approved JDs can be challenged in court under the Administrative Procedures Act (APA). The Court's analysis was based on a two-prong test set forth...
