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ARTICLE · 07 JUNE 2016

Jurisdictional Determinations Are Reviewable By The Courts

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The U.S. Supreme Court decided that federal courts can review Army Corps of Engineers' determinations that a waterbody is subject to Clean Water Act regulation...

United StatesReal Estate and Construction
Keith Garner
Keith Garner
James Rusk
James Rusk
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United States Army Corps of Engineers v. Hawkes Co., Inc. (5/31/16, No. 15-290)

In a widely anticipated decision in the wake of the Sackette v. EPA (132 S.Ct. 1367 (2012) decision, the U.S. Supreme Court decided that federal courts can review Army Corps of Engineers' ("Corps") determinations that a waterbody is subject to Clean Water Act regulation, resolving a split between the circuits in a victory for land owners.

The underlying dispute involved Hawkes Co. Inc. ("Hawkes"), which is in the business of mining peat on land it owned in northwestern Minnesota. Hawkes sought to expand its business onto an adjacent property it wanted to purchase. In 2010, it got a "preliminary" jurisdictional determination or "JD" from the Corps, which concluded the property contained waters of the U.S. subject to the Clean Water Act. Hawkes objected, and after further discussion, the Corps issued an "approved" JD in 2012 concluding the property contains wetlands that (a) have a

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