(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 discharge pollutants without a permit from the Army Corps of Engineers risk substantial criminal and civil penalties, §§1319(c), (d), 

while those who do apply for a permit face a process that is often arduous, expensive, and long. It can be difficult to determine in the 

first place, however, whether “waters of the United States” are present. 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, holding 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 reviewable 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 consummation of the agency’s decisionmaking process,” and “second, 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, 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 “waters 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 Determination Form Instructional Guidebook 47–60, and typically remains 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 “direct 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 waters—creates a five-year safe harbor from civil enforcement proceedings 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 “pragmatic” approach the Court has long taken to finality. Abbott Laboratories 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 enforcement 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 suggests, 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 review. 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,” Sackett v. EPA, 566 U. S. ___, ___, “[t]he mere fact” that permitting decisions 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, 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 
 

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 “individual” 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 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, pending 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 “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, 
 

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 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 
 

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 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 

—————— 

2Because 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 fiveyear 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. 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 Foundation, 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. 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 

—————— 

3The 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]onspecial” 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 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 
 

 

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 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 “inventory of similar wetlands in the general area (watershed),

including some analysis of their quality”; and an “inventory 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 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. 
_________________ 

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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 Protection 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 property 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 judgment), 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.” Memorandum of Agreement §§IV–C–2, VI–A; ante, at 6 (majority 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 “direct 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 (memorandum “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 establish 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.