U.S. Army Corps of Eng'rs v. Hawkes Co. ( 2016 )

(Slip Opinion) OCTOBER TERM, 2015 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
UNITED STATES ARMY CORPS OF ENGINEERS v.
HAWKES CO., INC., ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE EIGHTH CIRCUIT
No. 15–290. Argued March 30, 2016—Decided May 31, 2016
The Clean Water Act regulates “the discharge of any pollutant” into
“the waters of the United States.” 33 U.S. C. §§1311(a), 1362(7),
(12). When property contains such waters, landowners who dis-
charge pollutants without a permit from the Army Corps of Engi-
neers risk substantial criminal and civil penalties, §§1319(c), (d),
while those who do apply for a permit face a process that is often ar-
duous, expensive, and long. It can be difficult to determine in the
first place, however, whether “waters of the United States” are pre-
sent. During the time period relevant to this case, for example, the
Corps defined that term to include all wetlands, the “use, degradation
or destruction of which could affect interstate or foreign commerce.”
33 CFR §328.3(a)(3). Because of that difficulty, the Corps allows
property owners to obtain a standalone “jurisdictional determination”
(JD) specifying whether a particular property contains “waters of the
United States.” §331.2. A JD may be either “preliminary,” advising
a property owner that such waters “may” be present, or “approved,”
definitively “stating the presence or absence” of such waters. Ibid.
An “approved” JD is considered an administratively appealable “final
agency action,” §§320.1(a)(6), 331.2, and is binding for five years on
both the Corps and the Environmental Protection Agency, 33 CFR pt.
331, App. C; EPA, Memorandum of Agreement: Exemptions Under
Section 404(F) of the Clean Water Act §VI–A.
Respondents, three companies engaged in mining peat, sought a
permit from the Corps to discharge material onto wetlands located on
property that respondents own and hope to mine. In connection with
the permitting process, respondents obtained an approved JD from
the Corps stating that the property contained “waters of the United
2 ARMY CORPS OF ENGINEERS v. HAWKES CO.
Syllabus
States” because its wetlands had a “significant nexus” to the Red
River of the North, located some 120 miles away. After exhausting
administrative remedies, respondents sought review of the approved
JD in Federal District Court under the Administrative Procedure Act
(APA), but the District Court dismissed for want of jurisdiction, hold-
ing that the revised JD was not a “final agency action for which there
is no other adequate remedy in a court,” 5 U.S. C. §704. The Eighth
Circuit reversed.
Held: The Corps’ approved JD is a final agency action judicially review-
able under the APA. Pp. 5–10.
(a) In general, two conditions must be satisfied for an agency action
to be “final” under the APA: “First, the action must mark the con-
summation of the agency’s decisionmaking process,” and “second, the
action must be one by which rights or obligations have been deter-
mined, or from which legal consequences will flow.” Bennett v. Spear,
520 U.S. 154, 177–178. Pp. 5–8.
(1) An approved JD satisfies Bennett’s first condition. It clearly
“mark[s] the consummation” of the Corps’ decisionmaking on the
question whether a particular property does or does not contain “wa-
ters of the United States.” It is issued after extensive factfinding by
the Corps regarding the physical and hydrological characteristics of
the property, see U. S. Army Corps of Engineers, Jurisdictional De-
termination Form Instructional Guidebook 47–60, and typically re-
mains valid for a period of five years, see 33 CFR pt. 331, App. C.
The Corps itself describes approved JDs as “final agency action.” Id.
§320.1(a)(6). Pp. 5–6.
(2) The definitive nature of approved JDs also gives rise to “di-
rect and appreciable legal consequences,” thereby satisfying Bennett’s
second condition as well. 520 U.S., at 178. A “negative” JD—i.e., an
approved JD stating that property does not contain jurisdictional wa-
ters—creates a five-year safe harbor from civil enforcement proceed-
ings brought by the Government and limits the potential liability a
property owner faces for violating the Clean Water Act. See 33
U.S. C. §§1319, 1365(a). Each of those effects is a legal consequence.
It follows that an “affirmative” JD, like the one issued here, also has
legal consequences: It deprives property owners of the five-year safe
harbor that “negative” JDs afford. This conclusion tracks the “prag-
matic” approach the Court has long taken to finality. Abbott Labora-
tories v. Gardner, 387 U.S. 136, 149. Pp. 6–8.
(b) A “final” agency action is reviewable under the APA only if
there are no adequate alternatives to APA review in court. The
Corps contends that respondents have two such alternatives: They
may proceed without a permit and argue in a Government enforce-
ment action that a permit was not required, or they may complete the
Cite as: 578 U. S. ____ (2016) 3
Syllabus
permit process and then seek judicial review, which, the Corps sug-
gests, is what Congress envisioned. Neither alternative is adequate.
Parties need not await enforcement proceedings before challenging
final agency action where such proceedings carry the risk of “serious
criminal and civil penalties.” Abbott, 387 U.S., at 153. And the
permitting process is not only costly and lengthy, but also irrelevant
to the finality of the approved JD and its suitability for judicial re-
view. Furthermore, because the Clean Water Act makes no reference
to standalone jurisdictional determinations, there is little basis for
inferring anything from it concerning their reviewability. Given “the
APA’s presumption of reviewability for all final agency action,” Sack-
ett v. EPA, 566 U. S. ___, ___, “[t]he mere fact” that permitting deci-
sions are reviewable is insufficient to imply “exclusion as to other[ ]”
agency actions, such as approved JDs, Abbott, 387 U.S., at 141. Pp.
8–10.
782 F.3d 994, affirmed.
ROBERTS, C. J., delivered the opinion of the Court, in which KENNEDY,
THOMAS, BREYER, ALITO, SOTOMAYOR, and KAGAN, JJ., joined. KENNEDY,
J., filed a concurring opinion, in which THOMAS and ALITO, JJ., joined.
KAGAN, J., filed a concurring opinion. GINSBURG, J., filed an opinion
concurring in part and concurring in the judgment.
Cite as: 578 U. S. ____ (2016) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–290
_________________
UNITED STATES ARMY CORPS OF ENGINEERS,
PETITIONER v. HAWKES CO., INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
[May 31, 2016]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
The Clean Water Act regulates the discharge of pollu-
tants into “the waters of the United States.” 33 U.S. C.
§§1311(a), 1362(7), (12). Because it can be difficult to
determine whether a particular parcel of property contains
such waters, the U. S. Army Corps of Engineers will issue
to property owners an “approved jurisdictional determina-
tion” stating the agency’s definitive view on that matter.
See 33 CFR §331.2 and pt. 331, App. C (2015). The ques-
tion presented is whether that determination is final
agency action judicially reviewable under the Administra-
tive Procedure Act, 5 U.S. C. §704.
I
A
The Clean Water Act prohibits “the discharge of any
pollutant” without a permit into “navigable waters,” which
it defines, in turn, as “the waters of the United States.” 33
U.S. C. §§1311(a), 1362(7), (12). During the time period
relevant to this case, the U. S. Army Corps of Engineers
defined the waters of the United States to include land
2 ARMY CORPS OF ENGINEERS v. HAWKES CO.
Opinion of the Court
areas occasionally or regularly saturated with water—
such as “mudflats, sandflats, wetlands, sloughs, prairie
potholes, wet meadows, [and] playa lakes”—the “use,
degradation or destruction of which could affect interstate
or foreign commerce.” 33 CFR §328.3(a)(3) (2012). The
Corps has applied that definition to assert jurisdiction
over “270-to-300 million acres of swampy lands in the
United States—including half of Alaska and an area the
size of California in the lower 48 States.” Rapanos v.
United States, 547 U.S. 715, 722 (2006) (plurality
opinion).1
It is often difficult to determine whether a particular
piece of property contains waters of the United States, but
there are important consequences if it does. The Clean
Water Act imposes substantial criminal and civil penalties
for discharging any pollutant into waters covered by the
Act without a permit from the Corps. See 33 U.S. C.
§§1311(a), 1319(c), (d), 1344(a). The costs of obtaining
such a permit are significant. For a specialized “individ-
ual” permit of the sort at issue in this case, for example, one
study found that the average applicant “spends 788 days
and $271,596 in completing the process,” without “count-
ing costs of mitigation or design changes.” Rapanos, 547
U.S., at 721. Even more readily available “general” per-
mits took applicants, on average, 313 days and $28,915 to
complete. Ibid. See generally 33 CFR §323.2(h) (limiting
“general” permits to activities that “cause only minimal
individual and cumulative environmental impacts”).
The Corps specifies whether particular property con-
——————
1 In 2015, the Corps adopted a new rule modifying the definition of
the scope of waters covered by the Clean Water Act in light of scientific
research and decisions of this Court interpreting the Act. See Clean
Water Rule: Definition of “Waters of the United States,” 80 Fed. Reg.
37054, 37055–37056. That rule is currently stayed nationwide, pend-
ing resolution of claims that the rule is arbitrary, capricious, and
contrary to law. See In re EPA, 803 F.3d 804, 807–809 (CA6 2015).
Cite as: 578 U. S. ____ (2016) 3
Opinion of the Court
tains “waters of the United States” by issuing “jurisdic-
tional determinations” (JDs) on a case-by-case basis.
§331.2. JDs come in two varieties: “preliminary” and
“approved.” Ibid. While preliminary JDs merely advise a
property owner “that there may be waters of the United
States on a parcel,” approved JDs definitively “stat[e] the
presence or absence” of such waters. Ibid. (emphasis
added). Unlike preliminary JDs, approved JDs can be
administratively appealed and are defined by regulation to
“constitute a Corps final agency action.” §§320.1(a)(6),
331.2. They are binding for five years on both the Corps
and the Environmental Protection Agency, which share
authority to enforce the Clean Water Act. See 33 U.S. C.
§§1319, 1344(s); 33 CFR pt. 331, App. C; EPA, Memoran-
dum of Agreement: Exemptions Under Section 404(F) of
the Clean Water Act §VI–A (1989) (Memorandum of
Agreement).
B
Respondents are three companies engaged in mining
peat in Marshall County, Minnesota. Peat is an organic
material that forms in waterlogged grounds, such as wet-
lands and bogs. See Xuehui & Jinming, Peat and Peat-
lands, in 2 Coal, Oil Shale, Natural Bitumen, Heavy Oil
and Peat 267–272 (G. Jinsheng ed. 2009) (Peat and Peat-
lands). It is widely used for soil improvement and burned
as fuel. Id., at 277. It can also be used to provide struc-
tural support and moisture for smooth, stable greens that
leave golfers with no one to blame but themselves for
errant putts. See Monteith & Welton, Use of Peat and
Other Organic Materials on Golf Courses, 13 Bulletin of
the United States Golf Association Green Section 90, 95–
100 (1933). At the same time, peat mining can have sig-
nificant environmental and ecological impacts, see Peat
and Peatlands 280–281, and therefore is regulated by both
federal and state environmental protection agencies, see,
4 ARMY CORPS OF ENGINEERS v. HAWKES CO.
Opinion of the Court
e.g., Minn. Stat. §103G.231 (2014).
Respondents own a 530-acre tract near their existing
mining operations. The tract includes wetlands, which
respondents believe contain sufficient high quality peat,
suitable for use in golf greens, to extend their mining
operations for 10 to 15 years. App. 8, 14–15, 31.
In December 2010, respondents applied to the Corps for
a Section 404 permit for the property. Id., at 15. A Sec-
tion 404 permit authorizes “the discharge of dredged or fill
material into the navigable waters at specified disposal
sites.” 33 U.S. C. §1344(a). Over the course of several
communications with respondents, Corps officials signaled
that the permitting process would be very expensive and
take years to complete. The Corps also advised respond-
ents that, if they wished to pursue their application, they
would have to submit numerous assessments of various
features of the property, which respondents estimate
would cost more than $100,000. App. 16–17, 31–35.
In February 2012, in connection with the permitting
process, the Corps issued an approved JD stating that the
property contained “water of the United States” because
its wetlands had a “significant nexus” to the Red River of
the North, located some 120 miles away. Id., at 13, 18, 20.
Respondents appealed the JD to the Corps’ Mississippi
Valley Division Commander, who remanded for further
factfinding. On remand, the Corps reaffirmed its original
conclusion and issued a revised JD to that effect. Id., at
18–20; App. to Pet. for Cert. 44a–45a.
Respondents then sought judicial review of the revised
JD under the Administrative Procedure Act (APA), 5
U.S. C. §500 et seq. The District Court dismissed for want
of subject matter jurisdiction, holding that the revised JD
was not “final agency action for which there is no other
adequate remedy in a court,” as required by the APA prior
to judicial review, 5 U.S. C. §704. 963 F. Supp. 2d 868,
872, 878 (Minn. 2013). The Court of Appeals for the
Cite as: 578 U. S. ____ (2016) 5
Opinion of the Court
Eighth Circuit reversed, 782 F.3d 994, 1002 (2015), and
we granted certiorari, 577 U. S. ___ (2015).
II
The Corps contends that the revised JD is not “final
agency action” and that, even if it were, there are ade-
quate alternatives for challenging it in court. We disagree
at both turns.
A
In Bennett v. Spear, 520 U.S. 154 (1997), we distilled
from our precedents two conditions that generally must be
satisfied for agency action to be “final” under the APA.
“First, the action must mark the consummation of the
agency’s decisionmaking process—it must not be of a
merely tentative or interlocutory nature. And second, the
action must be one by which rights or obligations have
been determined, or from which legal consequences will
flow.” Id., at 177–178 (internal quotation marks and
citation omitted).2
The Corps does not dispute that an approved JD satis-
fies the first Bennett condition. Unlike preliminary JDs—
which are “advisory in nature” and simply indicate that
“there may be waters of the United States” on a parcel of
property, 33 CFR §331.2—an approved JD clearly
“mark[s] the consummation” of the Corps’ decisionmaking
process on that question, Bennett, 520 U.S., at 178 (inter-
nal quotation marks omitted). It is issued after extensive
factfinding by the Corps regarding the physical and hydro-
logical characteristics of the property, see U. S. Army
Corps of Engineers, Jurisdictional Determination Form
Instructional Guidebook 47–60 (2007), and is typically not
——————
2 Because we determine that a JD satisfies both prongs of Bennett, we
need not consider respondents’ argument that an agency action that
satisfies only the first may also constitute final agency action. See
Brief for Respondents 19–20.
6 ARMY CORPS OF ENGINEERS v. HAWKES CO.
Opinion of the Court
revisited if the permitting process moves forward. Indeed,
the Corps itself describes approved JDs as “final agency
action,” see 33 CFR §320.1(a)(6), and specifies that an
approved JD “will remain valid for a period of five years,”
Corps, Regulatory Guidance Letter No. 05–02, §1(a), p. 1
(June 14, 2005) (2005 Guidance Letter); see also 33 CFR
pt. 331, App. C.
The Corps may revise an approved JD within the five-
year period based on “new information.” 2005 Guidance
Letter §1(a), at 1. That possibility, however, is a common
characteristic of agency action, and does not make an
otherwise definitive decision nonfinal. See Sackett v. EPA,
566 U. S. ___, ___ (2012); see also National Cable & Tele-
communications Assn. v. Brand X Internet Services, 545
U.S. 967, 981 (2005). By issuing respondents an approved
JD, the Corps for all practical purposes “has ruled defini-
tively” that respondents’ property contains jurisdictional
waters. Sackett, 566 U. S., at ___ (GINSBURG, J., concur-
ring) (slip op., at 1).
The definitive nature of approved JDs also gives rise to
“direct and appreciable legal consequences,” thereby satis-
fying the second prong of Bennett. 520 U.S., at 178.
Consider the effect of an approved JD stating that a par-
ty’s property does not contain jurisdictional waters—a
“negative” JD, in Corps parlance. As noted, such a JD will
generally bind the Corps for five years. See 33 CFR pt.
331, App. C; 2005 Guidance Letter §1. Under a longstand-
ing memorandum of agreement between the Corps and
EPA, it will also be “binding on the Government and
represent the Government’s position in any subsequent
Federal action or litigation concerning that final determi-
nation.” Memorandum of Agreement §§IV–C–2, VI–A. A
negative JD thus binds the two agencies authorized to
bring civil enforcement proceedings under the Clean Wa-
ter Act, see 33 U.S. C. §1319, creating a five-year safe
harbor from such proceedings for a property owner. Addi-
Cite as: 578 U. S. ____ (2016) 7
Opinion of the Court
tionally, although the property owner may still face a
citizen suit under the Act, such a suit—unlike actions
brought by the Government—cannot impose civil liability
for wholly past violations. See §§1319(d), 1365(a);
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Founda-
tion, Inc., 484 U.S. 49, 58–59 (1987). In other words, a
negative JD both narrows the field of potential plaintiffs
and limits the potential liability a landowner faces for
discharging pollutants without a permit. Each of those
effects is a “legal consequence[ ]” satisfying the second
Bennett prong. 520 U.S., at 178; see also Sackett, 566
U. S., at ___.
It follows that affirmative JDs have legal consequences
as well: They represent the denial of the safe harbor that
negative JDs afford. See 5 U.S. C. §551(13) (defining
“agency action” to include an agency “rule, order, license,
sanction, relief, or the equivalent,” or the “denial thereof ”).
Because “legal consequences . . . flow” from approved JDs,
they constitute final agency action. Bennett, 520 U.S., at
178 (internal quotation marks omitted).3
This conclusion tracks the “pragmatic” approach we
have long taken to finality. Abbott Laboratories v. Gard-
ner, 387 U.S. 136, 149 (1967). For example, in Frozen
Food Express v. United States, 351 U.S. 40 (1956), we
considered the finality of an order specifying which com-
modities the Interstate Commerce Commission believed
were exempt by statute from regulation, and which it
——————
3 The Corps asserts that the Memorandum of Agreement addresses
only “special case” JDs, rather than “mine-run” ones “of the sort at
issue here.” Reply Brief 12, n. 3. But the memorandum plainly makes
binding “[a]ll final determinations,” whether in “[s]pecial” or “[n]on-
special” cases. Memorandum of Agreement §§IV–C, VI–A; see also
Corps, Memorandum of Understanding Geographical Jurisdiction of the
Section 404 Program, 45 Fed. Reg. 45019, n. 1 (1980) (“[U]nder this
[memorandum], except in special cases previously agreed to, the
[Corps] is authorized to make a final determination . . . and such
determination shall be binding.”).
8 ARMY CORPS OF ENGINEERS v. HAWKES CO.
Opinion of the Court
believed were not. Although the order “had no authority
except to give notice of how the Commission interpreted”
the relevant statute, and “would have effect only if and
when a particular action was brought against a particular
carrier,” Abbott, 387 U.S., at 150, we held that the order
was nonetheless immediately reviewable, Frozen Food,
351 U.S., at 44–45. The order, we explained, “warns
every carrier, who does not have authority from the Com-
mission to transport those commodities, that it does so at
the risk of incurring criminal penalties.” Id., at 44. So too
here, while no administrative or criminal proceeding can
be brought for failure to conform to the approved JD itself,
that final agency determination not only deprives re-
spondents of a five-year safe harbor from liability under
the Act, but warns that if they discharge pollutants onto
their property without obtaining a permit from the Corps,
they do so at the risk of significant criminal and civil
penalties.
B
Even if final, an agency action is reviewable under the
APA only if there are no adequate alternatives to APA
review in court. 5 U.S. C. §704. The Corps contends that
respondents have two such alternatives: either discharge
fill material without a permit, risking an EPA enforce-
ment action during which they can argue that no permit
was required, or apply for a permit and seek judicial re-
view if dissatisfied with the results. Brief for Petitioner
45–51.
Neither alternative is adequate. As we have long held,
parties need not await enforcement proceedings before
challenging final agency action where such proceedings
carry the risk of “serious criminal and civil penalties.”
Abbott, 387 U.S., at 153. If respondents discharged fill
material without a permit, in the mistaken belief that
their property did not contain jurisdictional waters, they
Cite as: 578 U. S. ____ (2016) 9
Opinion of the Court
would expose themselves to civil penalties of up to $37,500
for each day they violated the Act, to say nothing of poten-
tial criminal liability. See 33 U.S. C. §§1319(c), (d); Sack-
ett, 566 U. S., at ___, n. 1 (citing 74 Fed. Reg. 626, 627
(2009)). Respondents need not assume such risks while
waiting for EPA to “drop the hammer” in order to have
their day in court. Sackett, 566 U. S., at ___ (slip op., at 6).
Nor is it an adequate alternative to APA review for a
landowner to apply for a permit and then seek judicial
review in the event of an unfavorable decision. As Corps
officials indicated in their discussions with respondents,
the permitting process can be arduous, expensive, and
long. See Rapanos, 547 U.S., at 721 (plurality opinion).
On top of the standard permit application that respond-
ents were required to submit, see 33 CFR §325.1(d)
(detailing contents of permit application), the Corps de-
manded that they undertake, among other things, a
“hydrogeologic assessment of the rich fen system including
the mineral/nutrient composition and pH of the groundwa-
ter; groundwater flow spatially and vertically; discharge
and recharge areas”; a “functional/resource assessment of
the site including a vegetation survey and identification of
native fen plan communities across the site”; an “inven-
tory of similar wetlands in the general area (watershed),
including some analysis of their quality”; and an “inven-
tory of rich fen plant communities that are within sites of
High and Outstanding Biodiversity Significance in the
area.” App. 33–34. Respondents estimate that undertak-
ing these analyses alone would cost more than $100,000.
Id., at 17. And whatever pertinence all this might have to
the issuance of a permit, none of it will alter the finality of
the approved JD, or affect its suitability for judicial re-
view. The permitting process adds nothing to the JD.
The Corps nevertheless argues that Congress made the
“evident[ ]” decision in the Clean Water Act that a cover-
age determination would be made “as part of the permit-
10 ARMY CORPS OF ENGINEERS v. HAWKES CO.
Opinion of the Court
ting process, and that the property owner would obtain
any necessary judicial review of that determination at the
conclusion of that process.” Brief for Petitioner 46. But as
the Corps acknowledges, the Clean Water Act makes no
reference to standalone jurisdictional determinations,
ibid., so there is little basis for inferring anything from it
concerning the reviewability of such distinct final agency
action. And given “the APA’s presumption of reviewability
for all final agency action,” Sackett, 566 U. S., at ___ (slip
op., at 8), “[t]he mere fact” that permitting decisions are
“reviewable should not suffice to support an implication of
exclusion as to other[ ]” agency actions, such as approved
JDs, Abbott, 387 U.S., at 141 (internal quotation marks
omitted); see also Sackett, 566 U. S., at ___ (slip op., at 8)
(“[I]f the express provision of judicial review in one section
of a long and complicated statute were alone enough to
overcome the APA’s presumption of reviewability . . . , it
would not be much of a presumption at all”).
Finally, the Corps emphasizes that seeking review in an
enforcement action or at the end of the permitting process
would be the only available avenues for obtaining review
“[i]f the Corps had never adopted its practice of issuing
standalone jurisdictional determinations upon request.”
Reply Brief 3; see also id., at 4, 23. True enough. But
such a “count your blessings” argument is not an adequate
rejoinder to the assertion of a right to judicial review
under the APA.
The judgment of the Court of Appeals for the Eighth
Circuit is affirmed.
It is so ordered.
Cite as: 578 U. S. ____ (2016) 1
KENNEDY, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–290
_________________
UNITED STATES ARMY CORPS OF ENGINEERS,
PETITIONER v. HAWKES CO., INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
[May 31, 2016]
JUSTICE KENNEDY, with whom JUSTICE THOMAS and
JUSTICE ALITO join, concurring.
My join extends to the Court’s opinion in full. The
following observation seems appropriate not to qualify
what the Court says but to point out that, based on the
Government’s representations in this case, the reach and
systemic consequences of the Clean Water Act remain a
cause for concern. As JUSTICE ALITO has noted in an
earlier case, the Act’s reach is “notoriously unclear” and
the consequences to landowners even for inadvertent
violations can be crushing. See Sackett v. EPA, 566 U. S.
___, ___ (2012) (concurring opinion) (slip op., at 1).
An approved Jurisdictional Determination (JD) gives a
landowner at least some measure of predictability, so long
as the agency’s declaration can be relied upon. Yet, the
Government has represented in this litigation that a JD
has no legally binding effect on the Environmental Protec-
tion Agency’s (EPA) enforcement decisions. It has stated
that the memorandum of agreement between the EPA and
the Army Corps of Engineers, which today’s opinion relies
on, does not have binding effect and can be revoked or
amended at the Agency’s unfettered discretion. Reply
Brief 12; Tr. of Oral Arg. 16. If that were correct, the Act’s
ominous reach would again be unchecked by the limited
relief the Court allows today. Even if, in an ordinary case,
2 ARMY CORPS OF ENGINEERS v. HAWKES CO.
KENNEDY, J., concurring
an agency’s internal agreement with another agency
cannot establish that its action is final, the Court is right
to construe a JD as binding in light of the fact that in
many instances it will have a significant bearing on
whether the Clean Water Act comports with due process.
The Act, especially without the JD procedure were the
Government permitted to foreclose it, continues to raise
troubling questions regarding the Government’s power to
cast doubt on the full use and enjoyment of private prop-
erty throughout the Nation.
Cite as: 578 U. S. ____ (2016) 1
KAGAN, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–290
_________________
UNITED STATES ARMY CORPS OF ENGINEERS,
PETITIONER v. HAWKES CO., INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
[May 31, 2016]
JUSTICE KAGAN, concurring.
I join the Court’s opinion in full. I write separately to
note that for me, unlike for JUSTICE GINSBURG, see post,
at 1 (opinion concurring in part and concurring in judg-
ment), the memorandum of agreement between the Army
Corps of Engineers and the Environmental Protection
Agency is central to the disposition of this case. For an
agency action to be final, “the action must be one by which
rights or obligations have been determined, or from which
legal consequences will flow.” Bennett v. Spear, 520 U.S.
154, 178 (1997). As the Court states, the memorandum of
agreement establishes that jurisdictional determinations
(JDs) are “binding on the Government and represent the
Government’s position in any subsequent Federal action
or litigation concerning that final determination.” Memo-
randum of Agreement §§IV–C–2, VI–A; ante, at 6 (major-
ity opinion). A negative JD thus prevents the Corps and
EPA—the two agencies with authority to enforce the
Clean Water Act—from bringing a civil action against a
property owner for the JD’s entire 5-year lifetime. Ante, at
6–7, and n. 3. The creation of that safe harbor, which
binds the agencies in any subsequent litigation, is a “di-
rect and appreciable legal consequence[ ]” satisfying the
second prong of Bennett. 520 U.S., at 178.
Cite as: 578 U. S. ____ (2016) 1
GINSBURG, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–290
_________________
UNITED STATES ARMY CORPS OF ENGINEERS,
PETITIONER v. HAWKES CO., INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
[May 31, 2016]
JUSTICE GINSBURG, concurring in part and concurring in
the judgment.
I join the Court’s opinion, save for its reliance upon the
Memorandum of Agreement between the Army Corps of
Engineers and the Environmental Protection Agency.
Ante, at 6–7, and n. 3 (construing the memorandum to
establish that Corps jurisdictional determinations (JDs)
are binding on the Federal Government in litigation for
five years). The Court received scant briefing about this
memorandum, and the United States does not share the
Court’s reading of it. See Reply Brief 12, n. 3 (memoran-
dum “does not address mine-run Corps jurisdictional
determinations of the sort at issue here”); Tr. of Oral Arg.
7 (same); id., at 9 (reading of the memorandum to estab-
lish that JDs have binding effect in litigation does not
“reflec[t] current government policy”). But the JD at
issue is “definitive,” not “informal” or “tentative,” Abbott
Laboratories v. Gardner, 387 U.S. 136, 151 (1967), and
has “an immediate and practical impact,” Frozen Food
Express v. United States, 351 U.S. 40, 44 (1956). See
also ante, at 7–8.* Accordingly, I agree with the Court
——————
* Bennett v. Spear, 520 U.S. 154, 178 (1997), contrary to JUSTICE
KAGAN’s suggestion, ante, at 1, (concurring opinion) does not displace or
alter the approach to finality established by Abbott Laboratories v.
Gardner, 387 U.S. 136, 149–151 (1967), and Frozen Food Express v.
2 ARMY CORPS OF ENGINEERS v. HAWKES CO.
Opinion of GINSBURG, J.
that the JD is final.
——————
United States, 351 U.S. 40, 44 (1956). Bennett dealt with finality
quickly, and did not cite those pathmarking decisions.