On May 31, 2016, the U.S. Supreme Court unanimously held that certain determinations made by the Army Corps of Engineers can be appealed directly to federal district courts. Specifically, the Court determined that “approved” jurisdictional determinations (“JDs”), where the Corps makes a definitive determination whether a specific property contains “waters of the United States,” and therefore is subject to greater regulation, can be reviewed by the federal courts. The Corps had argued that such JDs were not final agency actions and that it provided sufficient internal review of such decisions. The Court disagreed.
This decision will potentially have significant impact on land developers faced with added regulatory requirements as well as those seeking to challenge a JD that finds that “waters of the United States” are not implicated by a specific development. Such parties will now be able to have their “day in court,” rather than being required to deal with the time and expense of internal review by the Corps. This judicial review will also likely provide more immediate certainty to landowners about regulatory requirements. Members of our Environmental Group will be monitoring the repercussions of this decision and are available to advise clients about regulatory requirements related to land development.
The Supreme Court case is Army Corps of Engineers v. Hawkes Co.