Approved Jurisdictional Determinations Now Subject To Appeal

In a game-changing decision for the world of wetlands law and beyond, the United States Supreme Court has held that U.S. Army Corps of Engineers-approved "jurisdictional determinations" (commonly referenced as "JDs") constitute "final agency action" and can be appealed by property owners prior to any subsequent governmental enforcement or permitting action. United States Army Corps of Engineers v. Hawkes Co., Inc., No. 15-290 (May 31, 2016).

Upholding the determination of the Court of Appeals for the Eighth Circuit, the eight-member Supreme Court—perhaps influenced by the memory of the late Justice Scalia's strong views on the intersection of individual property rights and the Clean Water Act—unanimously held that a Corps-approved JD is of such practical legal and economic significance that the owner of the affected property should be entitled to seek judicial review without awaiting regulatory or judicial action by the government (e.g., a penalty assessment for dredging alleged "waters of the United States" without a permit).

The Court's ruling, while facially limited to JDs approved by the Corps, is rightly being viewed as landscape altering for any number of other areas of administrative regulation, as the core principle underlying the ruling is that a "pragmatic" approach should be taken by the courts when considering whether a given regulatory agency determination is "final" and therefore appealable. Needless to say, practitioners in myriad fields of regulated commerce are more than familiar with the nearly ubiquitous regulatory refrain that "this is not a final action and it may not be appealed," no matter how consequential the determination might actually be.

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