The Supreme Court today found that an “approved jurisdictional determination” whether a property contains “waters of the United States” is a final agency action and can be taken through court review. The case of the United States Army Corps of Engineers v. Hawkes Co. Inc., et al was an appeal by the Corps from the Eighth Circuit Court of Appeals. http://www.supremecourt.gov/opinions/15pdf/15-290_6k37.pdf

All eight of the sitting Supreme Court Justices agreed that this type of decision by the Corps was ripe for appeal, contrary to the long-held stance of the Corps. However, it took four separate opinions to express the thoughts of the Justices.

The Court found that the approved jurisdictional determination is a final agency action and that this action is “one by which rights or obligations have been determined, or from which legal consequences will flow”, citing Bennet v. Spear, 520 U.S. 154 (1997).

A final agency action may not be reviewable if there are adequate alternatives to review in court. But the Court found that the alternatives offered by the Corps, to proceed with development and battle the question out in enforcement or to continue with the permitting process, were unacceptable as they created long timeframes to reach an adjudicated decision and were highly costly to the applicant.

In a concurring opinion, Justice Kennedy, joined by Justices Alito and Thomas, remarked that the “reach and systematic consequences of the Clean Water Act remain a cause for concern”, as it “continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.”

Justices Kagan and Ginsberg each issued separate opinions, also concurring in the judgement but discussing aspects of former cases and their application here.