On March 30, the U.S. Supreme Court heard oral argument in the case of U.S. Army Corps of Engineers v. Hawkes, No. 15-290. The issue presented to the court was whether a determination by the U.S. Army Corps of Engineers that a specific wetland is a “water of the United States” and therefore within the jurisdictional reach of the Clean Water Act is an appealable final action of the agency. Because the Corps makes thousands of jurisdictional determinations annually, the decision will have significance for developers and other persons seeking to challenge the Corps’ jurisdictional determinations. It may also establish precedent for when decisions of other agencies will be subject to judicial review.

The dispute in Hawkes arose out of Hawkes Co.’s plan to harvest peat from 530 acres of wetlands. The Clean Water Act prohibits the discharge of any pollutant to the “waters of the United States” from a point source without a permit. Pursuant to Section 404 of the act, the Corps issues permits establishing the conditions under which dredged or fill materials may be ­discharged into navigable waters. The Clean Water Act is not applicable and a permit from the Corps is not ­necessary where the wetlands or other waters into which material will be discharged are not waters of the United States, i.e., navigable waters. Hawkes contended that its activity did not require a federal permit because the wetland at issue was not a navigable water.

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