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, Washington,
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
pollutants 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 determination”
stating the agency’s definitive view on that matter. See 33 CFR
§331.2 and pt. 331, App. C (2015). The question presented is
whether that determination is final agency action judicially
reviewable under the Administrative 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 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 “counting costs of mitigation or design changes.”
Rapanos, 547 U. S., at 721. Even more readily available
“general” permits 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
contains “waters of the United States” by issuing “jurisdictional
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, Memorandum 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 wetlands and
bogs. See Xuehui & Jinming, Peat and Peatlands, in 2 Coal, Oil
Shale, Natural Bitumen, Heavy Oil and Peat 267–272 (G. Jinsheng ed.
2009) (Peat and Peatlands). It is widely used for soil improvement
and burned as fuel.
Id., at 277. It can also be used to
provide structural 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 significant environmental and ecological impacts,
see Peat and Peatlands 280–281, and therefore is regulated by both
federal and state environmental protection agencies, see,
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 Section 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 respondents 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 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 adequate
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
satisfies 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 (internal quotation marks omitted). 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 Determination Form Instructional
Guidebook 47–60 (2007), and is typically not 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 &
Telecommunications 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 definitively”
that respondents’ property contains jurisdictional waters.
Sackett, 566 U. S., at ___ (Ginsburg, J., concurring)
(slip op., at 1).
The definitive nature of approved JDs also gives
rise to “direct and appreciable legal consequences,” thereby
satisfying the second prong of
Bennett. 520 U. S., at
178. Consider the effect of an approved JD stating that a party’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 longstanding 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 determination.”
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 Water Act, see 33 U. S. C. §1319,
creating a five-year safe harbor from such proceedings for a
property owner. Additionally, 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 Foundation, Inc., 484 U. S.
49 –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.
Gardner, 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
commodities the Interstate Commerce Commission believed were exempt
by statute from regulation, and which it 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 Commission 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 respondents 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 enforcement action during
which they can argue that no permit was required, or apply for a
permit and seek judicial review 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 would expose themselves to
civil penalties of up to $37,500 for each day they violated the
Act, to say nothing of potential criminal liability. See 33
U. S. C. §§1319(c), (d);
Sackett, 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 respondents were required to submit, see 33
CFR §325.1(d) (detailing contents of permit application), the Corps
demanded that they undertake, among other things, a “hydrogeologic
assessment of the rich fen system including the mineral/nutrient
composition and pH of the groundwater; 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 undertaking 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 review. 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
coverage determination would be made “as part of the permitting
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.
