The government faced an uphill battle in Wednesday’s argument in United States Army Corps of Engineers v. Hawkes Co. As noted in my preview, the case involves the “jurisdictional determinations” (JDs) that the United States Army Corps of Engineers issues under the Clean Water Act. JDs advise landowners whether their property contains “waters of the United States” – that is, waters subject to the act’s requirements, including a potentially long and costly permitting process if the landowner wants to fill in a wetland. The question presented is whether JDs constitute final agency action within the meaning of the Administrative Procedure Act, such that parties can immediately challenge an adverse JD in court.
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