In the wake of the revised definition of “waters of the United States” under the Clean Water Act, the question of jurisdiction has transformed from a boring exercise of intellectual curiosity into an all-out brawl between the United States Circuits.  Before the expected battle over the revised definition itself has even begun in earnest, one has emerged over whether a jurisdictional determination is a final agency action and subject to judicial review. 

The Fifth Circuit struck first on July 30, 2014 with its decision in Belle Co. LLC v. Corps, holding that jurisdictional determinations are not subject to judicial review because they do not amount to final agency action within the meaning of the APA.  Belle disagreed with a jurisdictional determination that its property, which it intended to use as a solid waste landfill, contained wetlands subject to the Corps’ CWA Section 404 permitting requirements.  Belle argued that the precedent established by the United States Supreme Court in Sackett v. EPA, holding that an EPA compliance order under the CWA involved consequences so serious and final that pre-enforcement judicial review was warranted, should apply to jurisdictional determinations under the CWA.  The Fifth Circuit, however, ruled that a jurisdictional determination was not a final agency action because it was only a threshold determination that did not impose any legal obligations on Belle or trigger any penalties.

On April 10, 2015, the Eighth Circuit struck back with its decision in Hawkes v. Corps, expressly disagreeing with the Belle decision concluding that “both [the district court and the Fifth Circuit] misapplied the Supreme Court’s decision in Sackett v. EPA, 132 S. Ct. 1367 (2012).”  Hawkes had sought a jurisdictional determination on several hundred acres of land where it planned to mine peat.  The Corps issued a jurisdictional determination that the property contained wetlands subject to the Corps’ CWA Section 404 permitting requirements.  Hawkes filed an administrative appeal which resulted in a revised determination that still concluded the property contained jurisdictional wetlands.  Hawkes then filed suit in federal district court under the APA alleging that the jurisdictional determination was a “final agency action.”  The district court held that jurisdictional determinations are not final agency actions within the meaning of the APA, but on appeal, the Eight Circuit reversed that decision.  Departing from the Fifth Circuit decision in Belle and an earlier Ninth Circuit decision in Fairbanks North Star Borough v. Corps, the Eighth Circuit held that a jurisdictional determination has a “powerful coercive effect” that warrants immediate judicial review.

The Eight Circuit’s decision creates a circuit court split on the important issue of whether jurisdictional determinations are reviewable under the APA.  Following the Eighth Circuit’s ruling, the appellants in Belle, who had previously been denied cert, filed a petition for rehearing that urged the Supreme Court to resolve the split in circuits.  With anxiety levels at an all-time high in the face of the new definition of “waters of the United States,” this dispute will be closely followed.