Petition for Writ of Certiorari — U.S. Army Corp of Eng'rs v. Hawkes Co., 136 S. Ct. 615 (2015) (No. 15-290)

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In the Supreme Court of the Anited States

UNITED STATES ARMY CORPS OF ENGINEERS,

PETITIONER

Vv.

HAWKES Co., INC., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

DONALD B. VERRILLI, JR.

Solicitor General

Counsel of Record

JOHN C. CRUDEN

Assistant Attorney General

MALCOLM L. STEWART

Deputy Solicitor General

GINGER D. ANDERS

Assistant to the Solicitor

General

JENNIFER SCHELLER NEUMANN

ROBERT J. LUNDMAN

Davip R. COOPER Attorneys

Chief Counsel Department of Justice

United States Army Washington, D.C. 20530-0001

Corps of Engineers SupremeCtBriefs usdoj.gov

Washington, el 20314 (202) 514-2217

QUESTION PRESENTED

Whether the United States Army Corps of Engi-

neers’ determination that the property at issue con-

tains “waters of the United States” protected by the

Clean Water Act, 33 U.S.C. 1362(7); see 33 U.S.C.

1251 et seq., constitutes “final agency action for which

there is no other adequate remedy in a court,” 5

U.S.C. 704, and is therefore subject to judicial review

under the Administrative Procedure Act, 5 U.S.C. 701

et seq.

(I)

PARTIES TO THE PROCEEDING

Petitioner.is the United States Army Corps of En-

gineers.

Respondents are Hawkes Co., Inc.; LPF Proper-

ties, LLC; and Pierce Investment Company.

(If)

TABLE OF CONTENTS

Page

Ee 1

ES l

Statutory and regulatory provisions involved .......................... 2

iinet remencnntnenaneenemmmmenmansenemnnenanns 2

Reasons for granting the petition....................c.ccscseseeseeeneeeeeees 11

A. The decision below created a circuit conflict................. 12

B. The decision below is incorrect ...................c-ss0-serseseeeseee 13

C. The question presented is recurring and

significant iaienecertelonateanenetetaniniianstuammennsensnemenessesvmmersnssncsesees 21

D. This case is a better vehicle than Kent Recycling

for addressing the question presented........................-+- 23

Conclusion sansneiennsansenedeseepeteanenseaneanmmememneansmmmensscenmenseesesmsnest 25

Appendix A — Court of appeals opinion (Apr. 10, 2015).......la

Appendix B — District court memorandum opinion

and order (Aug. 1, 2013)...............c.c-cs-e0- 22a

Appendix C — Approved jurisdictional determination

ee 44a

Appendix D — Court of appeals order (July 7, 2015)........ 108a

Appendix E — Statutory and regulatory provisions......... 105a

TABLE OF AUTHORITIES

Cases:

Abbott Labs. v. Gardner, 387 U.S. 136 (1967)................ 17

Belle Co. v. United States Army Corps of Eng’rs,

761 F.3d 383 (5th Cir. 2014), cert. denied

sub nom. Kent Recycling Servs., LLC v. United

States Army Corps of Eng’rs, 135 S. Ct. 1548

(2015), petition for reh’g pending, No. 14-493

8) 8, 11, 12, 13, 19, 22

Bennett v. Spear, 520 U.S. 154 (1997) ...5, 6, 12, 13, 17, 18

(IIT)

Cases—Continued: Page

Carabell v. United States Army Corps of Eng’rs,

391 F.3d 704 (6th Cir. 2004), vacated on other

grounds sub nom. Rapanos v. United States,

ee Ce Cae netenscnnenssonisensasnannmiianteniecenteennsen 4, 20

Columbia Broad. Sys., Inc. v. United States,

A I icterninnrssitiennmnntsmanininaansininiatiananis 17

Fairbanks N. Star Borough v. U.S. Army Corps of

Eng’rs, 543 F.3d 586 (9th Cir. 2008), cert. denied,

8 ee 12, 16

Frozen Food Express v. United States, 351 U.S. 40

TEE iocestosesiiinancacinncumetistiineateniieamesisiiesbbindiaimaingeasiilnnciecaduniiies 17

National Ass'n of Home Builders v. Norton,

a a Oe Ga. CD cercrnenrenesensencsnssernnenstememene 16

Precon Dev. Corp. v. United States Army Corps of

Eng’rs, 633 F.3d 278 (4th Cir. 2011) ................:cccceeeees 19

Rochester Tel. Corp. v. United States, 307 U.S. 125

SE aceccnininduninetenestpenenapenimenessasigntesninaiemmennetiniiintinneates 15

Sackett v. EPA, 132 S. Ct. 1367 (2012)................... passim

United States v. Deaton, 332 F.3d 698 (4th Cir.

2003), cert. denied, 541 U.S. 972 (2004) 0.0... eeeceeeee 5

Statutes and regulations:

Administrative Procedure Act, 5 U.S.C. 701

6B GUE cesssscssesnssscscccacenscassesensesanenssesussanspsssenensscnegnansonpessseness 4

TE 5, 7, 9, 13, 19

8 eee : wall

A : 22

Clean Water Act, Pub. L. No. 92-500, § 2, 86 Stat.

RF ee 2

a ae Se crtasnensnnenememnnmmnnsnnmmmmemnenennianl 2

33 U.S.C. 1311(a) (§ BO1(a))..........0.ceccerececeerererecsererereees 2,14

BD EA Ti ccscsssensenmsescszsccenensesssemssssemmnasenseseet 4, 15, 20

Statutes and regulations—Continued: Page

enlace 5

ell 5, 15, 20

Rk aN nee 16

Se I cindtaserrnsirenieainerieneneanatiesl 15, 16, 19

TT HTT nis siascnreninsssmannatatmenneiaronmaatiiad 4, 15, 20

Re aT inicnnciinsentninannntinnnnnneinniionniaitil 15

Eno 2,14

8S eee 2,4, 14

I Erernnnenr ee 2,19

XESS cE RELAIS eeeoreer ncaa 2

33 U.S.C. 1344(e) isenaeateninniaiaimabiadeinmemeel 4

I career erin ticeaatiiiaiilestaniaiadl 22

aaa arisen ennai 4

EE iene” 2,11, 14

SERENE 2

33 C.F.R.:

Pt. 320:

I a 2, 21

ITTrnsrT ect caciradisbtclaeataetaeimeaeataeniiainiaiaend ebaantaeaeeaciaiaameeneill 4

teicher niall 4

Pt. 326:

EFA eee 4

I aac 19

asian tata ceaenaaeattataiaaraitaccintaieainial 5

Fa Sa icissclsacnasinenenntnanianpeneneinnepamenaaintanaenaiieememssmnsasiceesl 4

ee 3

TN TTT 2, 3,14

Section 331.10 ........... cieneiisintiineiaiianimsstiitaabiaata 19

TTT ssisciocsieienarsnesienriiriasintmentiieealianlaticiabniriaahiiaal 19

Regulation—Continued: Page

40 C.F.R.:

SU haicniitendialaningteniainpinenianieninieiel 4

Miscellaneous:

79 Fed. Reg. 22,188 (Apr. 21, 2014) .............ccccececeeecceeees 10

80 Fed. Reg. (June 29, 2015):

i TITTconrsesiensenininmenenasneenennennenensennenennennaeneanenasansmmmmenesacemannens 11

a 10

a, SE canescransesvenssnasnenennssnnenssrsemmancumnnsemansessasemeansanmnnannenii 21

ee 11

TE ecintacuinnneustennnememmenmmeenmmennnnmenen 11

U.S. Army Corps of Eng’rs:

Regulatory Guidance Letter No. 05-02 (June 14,

ERT RE IN, Nee 3

Regulatory Guidance Letter No. 08-02 ene 26,

2008) pinieetennenepeenipenseiaieunenpeneenennnieamnremnen 3

Regulatory—Protecting the Iutegelity of Ameri-

ca’s Waters (Feb. 2, 2015), http://www.

usace.army.mil/Portals/2/docs/civilworks/

budget/strongpt/fyl6sp_regulatory.pdf................... 21

Jn the Supreme Court of the Gnited States

No.

UNITED STATES ARMY CORPS OF ENGINEERS,

PETITIONER

HAWKES Co., INC., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the United

States Army Corps of Engineers (Corps), respectfully

petitions for a writ of certiorari to review the judg-

ment of the United States Court of Appeals for the

Eighth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, la-

21a), is reported at 782 F.3d 994. The opinion of the

district court (App., infra, 22a-43a), is reported at 963

F Supp. 2d 868.

JURISDICTION

The judgment of the court of appeals was entered

on April 10, 2015. A petition for rehearing was denied

on July 7, 2015 (App., infra, 103a-104a). The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254(1).

(1)

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

Relevant statutory and regulatory provisions are

reproduced in the Appendix to this petition. App.,

infra, 105a-121a.

STATEMENT

1. a. Congress enacted the Clean Water Act (CWA

or Act) “to restore and maintain the chemical, physi-

cal, and biological integrity of the Nation’s waters.”

33 U.S.C. 1251(a); see Pub. L. No. 92-500, § 2, 86 Stat.

816 (83 U.S.C. 1251 et seg.). Section 301(a) of the

CWA prohibits the “discharge of any pollutant”—

defined as the addition of any pollutant to the “waters

of the United States” from any “point source”—except

“as in compliance with” specified provisions of the

CWA. 33 U.S.C. 1311(a), 1362(7) and (12). The CWA

allows discharges under two complementary permit-

ting regimes. Section 404 authorizes the Corps to

issue permits “for the discharge of dredged or fill

material into the navigable waters at specified dispos-

al sites.” 33 U.S.C. 1344(a) and (d). Section 402 au-

thorizes the Environmental Protection Agency (EPA)

to issue permits for the discharge of any pollutant

other than dredged or fill material. 33 U.S.C. 1342.

The Corps’ regulations authorize (but do not re-

quire) the Corps to provide the agency’s view on

whether particular tracts contain “waters of the

United States” that are subject to the agency’s regu-

latory authority under Section 404 of the CWA when a

landowner (for instance) asks the Corps to do so. See

33 C.F.R. 320.1(a)(6), 331.2; see also 33 C.F.R. Pt. 331,

App. C. The Corps may provide its view in a docu-

ment called a “{jjurisdictional determination,” which

applicable regulations define as “a written Corps

determination that a wetland and/or waterbody is

subject to regulatory jurisdiction under Section 404 of

the Clean Water Act (33 U.S.C. 1344) or * * * the

River and Harbors Act of 1899 (33 U.S.C. 401 et seq.).”

33 C.F.R. 331.2 (emphasis omitted). Neither the CWA

nor its implementing regulations ~equire a landowner

to obtain a jurisdictional determination before dis-

charging dredged or fill material.

An “({a]pproved jurisdictional determination” is “a

Corps document stating the presence or absence of

waters of the United States on a parcel or a written

statement and map identifying the limits of waters of

the United States on a parcel.”’ 33 C.F.R. 331.2 (em-

phasis omitted). An approved jurisdictional determi-

nation is valid for five years, 33 C.F.R. Pt. 331, App.

C, “unless new information warrants revision of the

determination before the expiration date.” Corps,

Regulatory Guidance Letter No. 05-02, 7 1 (June 14,

2005). When the Corps issues an approved jurisdic-

tional determination, an affected party may pursue an

administrative appeal of that determination within the

Corps. See 33 C.F.R. Pt. 331.

Whether or not a jurisdictional determination has

been requested or issued, a landowner planning to

discharge dredged or fill material on its property has

various options. The landowner may apply for a

' The Corps’ regulations also provide for issuance of preliminary

jurisdictional determinations, which are “written indications that

there may be waters of the United States on a parcel or indications

of the approximate location(s) of waters of the United States on a

parcel.” 33 C.F.R. 331.2. Preliminary jurisdictional determina-

tions thus do not reflect any conclusion about whether “waters of

the United States” are present. Jbid.; see Corps, Regulatory

Guidance Letter No. 08-02, 1% 4, 7 (June 26, 2008).

Section 404 permit from the Corps. See 33 U.S.C.

1344; 33 C.F.R. Pts. 323, 325; 40 C.F.R. Pt. 230. If the

landowner, having exhausted administrative remedies,

is dissatisfied with the Corps’ final permitting deci-

sion, it may seek judicial review under the Admin-

istrative Procedure Act (APA), 5 U.S.C. 701 et seq.,

including with respect to the Corps’ determination

that the property at issue contains waters protected

by the CWA. See, e.g., Carabell v. United States

Army Corps of Eng’rs, 391 F.3d 704, 706-707 (6th Cir.

2004), vacated on other grounds sub nom. Rapanos v.

United States, 547 U.S. 715 (2006). The landowner

may also proceed under an applicable general per-

mit previously issued by the Corps. See 33 U.S.C.

1344(e); 33 C.F.R. Pt. 330 (nationwide permit

program).

Alternatively, a landowner may proceed without

seeking a permit. The CWA exempts numerous activ-

ities, including certain farming and road-maintenance

activities, from the permitting requirements. 33

U.S.C. 1344(f). If the activity is not subject to any

exemptions, and the government determines that a

completed or ongoing discharge violates the CWA,

then the government may take administrative action,

including the issuance of a warning letter, a “cease

and desist” order, 33 C.F.R. 326.3(c), an administra.

tive compliance order, an administrative penalty, or a

combination of those options, see 33 U.S.C. 1319(a)

and (g). The recipient of an EPA compliance order

may bring suit under the APA to challenge the order,

and it may contend that the property is not covered by

the CWA. See Sackett v. EPA, 132 S. Ct. 1367, 1370-

1371 (2012). The government may also bring an en-

forcement action in district court to obtain injunctive

and other relief. 33 U.S.C. 1319(b); 33 C.F.R. 326.5.

At that time, the discharger may contend, inter alia,

that its conduct did not violate the CWA because it did

not involve a discharge into “the waters of the United

States.” See, e.g., United States v. Deaton, 332 F.3d

698, 701-703 (4th Cir. 2003), cert. denied, 541 U.S. 972

(2004). In any of those proceedings, the fact that the

landowner previously received a jurisdictional deter-

mination does not expose it to additional penalties or

otherwise alter its rights or obligations within the

proceeding.

b. The APA provides that “[a]gency action made

reviewable by statute and final agency action for

which there is no other adequate remedy in a court

are subject to judicial review.” 5 U.S.C. 704. “As a

general matter, two conditions must be satisfied for an

agency action to be ‘final’” under the APA. Bennett v.

Spear, 520 U.S. 154, 177 (1997). “First, the action

must mark the consummation of the agency’s deci-

sionmaking process—it must not be of a merely tenta-

tive or interlocutory nature.” Jd. at 177-178 (citation

and internal quotations omitted). “And second, the

action must be one by which rights or obligations have

been determined, or from which legal consequences

will flow.” Jd. at 178 (citation and internal quotations

omitted).

In Sackett, supra, this Court held that an EPA

compliance order, which reflects the EPA’s determi-

nation that a landowner has violated the CWA by

discharging pollutants into protected waters without a

permit and which requires remedial action, see 33

U.S.C. 1319(a)(3), is “final agency action” subject to

judicial review under the APA, 5 U.S.C. 704; see 132

S. Ct. at 1871-1372. The Court explained that the

compliance order represented the “consummation” of

the agency’s decisionmaking process because the

EPA’s conclusion that the Sacketts had violated the

CWA was not subject to further review within the

agency. Sackett, 132 S. Ct. at 1372 (quoting Bennett,

520 U.S. at 178) (internal quotation marks omitted).

The Court also concluded that the compliance order

“determined rights or obligations.” Jd. at 1371 (quot-

ing Bennett, 520 U.S. at 178). The Court explained

that the order by its terms imposed “the legal obliga-

tion to ‘restore’” the property in question, and that

the order required the Sacketts to give the EPA ac-

cess to their property. Jbid. In addition, the order

imposed “legal consequences” by “expos[ing] the

Sacketts to double penalties in a future enforcement

proceeding” and “severely limit[ing] [their] ability to

obtain a permit” under the CWA. /d. at 1371-1372.

2. a. Respondents Pierce Investment Company

and LPF Properties, LLC, own 530 acres of land in

Minnesota. Respondent Hawkes Co., Inc. (Hawkes),

would like to mine the 530 acres for peat, which is

formed in wetlands. Hawkes has an existing peat

mining operation nearby and would pay royalties to

respondent property owners. App., infra, 5a-6a, 23a.

In December 2010, Hawkes applied for a Section

404 permit from the Corps. In March 2011, the Corps

informed Hawkes of the Corps’ preliminary determi-

nation that the property contains waters of the United

States. App., infra, 6a. In February 2012, after fur-

ther meetings and visits to the property, the Corps

provided Hawkes with an approved jurisdictional

determination, which concluded that the property

contains waters of the United States. Jd. at 6a-7a.

Respondents’ complaint alleges that, during the pro-

cess of developing the jurisdictional determination,

Corps employees asserted that the permit process

would be costly and time-consuming. /d. at 6a; C.A.

J.A. 9 (Am. Compl. 4 40).

Respondents filed an administrative appeal. In Oc-

tober 2012, finding that the approved jurisdictional

determination lacked sufficient analysis to support a

finding of regulatory jurisdiction, the Corps’ Missis-

sippi Valley Division remanded the jurisdictional

determination for reconsideration. App., infra, 7a,

44a. In December 2012, the Corps issued a revised

approved jurisdictional determination, which again

concluded that the property contains waters of the

United States. Jd. at 7a-8a, 44a-102a. The revised

approved jurisdictional determination explained that

the property contains approximately 150 acres of

wetlands that are adjacent to waters that flow directly

or indirectly into traditional navigable waters. Jd. at

50a-5la. The Corps concluded that the wetlands have

a significant nexus with a traditional navigable water,

the Red River of the North. /d. at 83a-100a.

b. In 2013, respondents filed this action, alleging

that the Corps’ jurisdictional determination was arbi-

trary and capricious under the APA, 5 U.S.C. 706(2).

App., infra, 8a, 27a. The Corps moved to dismiss,

arguing that the jurisdictional determination was not

“final agency action” subject to judicial review under

the APA, 5 U.S.C. 704, and that respondents’ chal-

lenge to the jurisdictional determination was not ripe.

App., infra, 8a.

The district court dismissed the suit. App., infra,

22a-43a. The court held that the Corps’ jurisdictional

determination was not final agency action under Ben-

nett. Id. at 3la. The court concluded that, although

the jurisdictional determination “satisfies the first

Bennett condition” because it marks the consumma-

tion of the agency’s decisionmaking, id. at 32a, it

“does not satisfy the second Bennett condition” be-

cause “it does not determine [respondents’]} rights or

obligations,” id. at 34a. The court explained that the

jurisdictional determination “does not order [respond-

ents] to take any kind of action” or “affect the legal

standards used by agencies and courts in determining

where the CWA applies.” Jd. at 35a. The court held

that Sackett did not require a different result because

the EPA compliance order at issue there subjected

the recipient to several immediate consequences,

including the obligation to remediate the property,

and also limited the recipient’s ability to obtain a

permit. Jd. at 36a-43a.

3. a. The court of appeals reversed. App., infra,

la-17a. The court held that a jurisdictional determi-

nation is a reviewable “final agency action” under the

APA. /d. at 16a-17a. The court acknowledged that

the Fifth Circuit had reached the opposite conclusion

in Belle Co. v. United States Army Corps of Engi-

neers, 761 F.3d 383 (2014), cert. denied sub nom. Kent

Recycling Services, LLC v. United States Army Corps

of Engineers, 135 S. Ct. 1548 (2015), petition for reh’g

pending, No. 14-493 (filed Apr. 16, 2015). The court

concluded, however, that the Fifth Circuit had “mis-

applied the Supreme Court’s decision in Sackett.”

App., infra, 2a. In the court of appeals’ view, “the

Court’s application of its flexible final agency action

standard in Sackett” indicated that a jurisdictional

determination should be considered final agency ac-

tion. Id. at 5a.

The court of appeals held that the jurisdictional de-

termination satisfied Bennett’s first prong because it

“was the consummation of the Corps’ decisionmaking

process on the threshold issue of the agency’s statuto-

ry authority.” App., infra, 9a. The court explained

that the Corps’ regulatory guidance describes an

approved jurisdictional determination as a “definitive,

official determination.” /bid. (citation omitted).

Turning to Bennett’s second prong, the court of ap-

peals concluded that an approved jurisdictional de-

termination determines “rights and obligations” and

imposes “legal consequences.” App., infra, 10a. The

court found little difference between “an agency order

that compels affirmative action,” such as the EPA

compliance order at issue in Sackett, and a jurisdic-

tional determination, which, in the court’s view, “pro-

hibits a party from taking otherwise lawful action.”

Id. at lla. The court stated that a jurisdictional de-

termination “requires [respondents] either to incur

substantial compliance costs (the permitting process),

forego what they assert is lawful use of their property,

or risk substantial enforcement penalties.” /bid.

The court of appeals also held that “there is no oth-

er adequate [judicial] remedy” if immediate judicial

review of the Corps’ jurisdictional determination is

unavailable. App., infra, 13a (citation omitted; brack-

ets in original); see 5 U.S.C. 704. While acknowledg-

ing that respondents could seek a permit and then

obtain judicial review of that decision, the court as-

serted that, “as a practical matter, the permitting

option is prohibitively expensive and futile.” App.,

infra, 14a. The court also stated that respondents’

“other option—commencing to mine peat without a

permit and await an enforcement action—is even more

plainly an inadequate remedy” because respondents

could incur “huge additional potential liability” by

doing so. Jbid. (citing Sackett, 182 S. Ct. at 1372).

The court therefore concluded that “a properly prag-

matic analysis of * * * final agency action principles

compels the conclusion that an [a]pproved [jurisdic-

tional determination] is subject to immediate judicial

review.” Id. at 16a.

b. Judge Kelly concurred. App., infra, 18a-21a.

She described the reviewability issue presented here

“as a close question.” Jd. at 18a. She observed that a

jurisdictional determination does not alter the recipi-

ent’s legal obligations in the way that the compliance

order in Sackett did. Jd. at 18a-20a. Judge Kelly

concluded, however, that a jurisdictional determina-

tion should be immediately reviewable to provide the

landowner an opportunity, before seeking a permit,

“to show the CWA does not apply to its land at all.”

Id. at 20a.

4. The court of appeals denied the Corps’ petition

for rehearing en banc and for panel rehearing. App.,

infra, 103a-104a.

5. In 2015, after a multi-year process and after the

court of appeals issued its decision in this case, the

Corps and the EPA issued a new rule clarifying the

agencies’ interpretation of the scope of waters covered

by the CWA. See 80 Fed. Reg. 37,055 (June 29, 2015)

(“In this final rule, the agencies clarify the scope of

‘waters of the United States’ that are protected under

the [CWA], based upon the text of the statute, Su-

preme Court decisions, the best available peer-

reviewed science, public input, and the agencies’ tech-

nical expertise and experience in implementing the

statute.”); see also 79 Fed. Reg. 22,188 (Apr. 21, 2014).

That rule provides that it will govern jurisdictional

determinations issued after its effective date. 80 Fed.

Reg. at 37,054, 37,073-37,074. The approved juris-

dictional determination at issue in this case was issued

under the agencies’ previous interpretation of CWA

coverage, and the new rule does not affect its five-year

period of validity.” See p. 3, supra; 80 Fed. Reg. at

37,074.

REASONS FOR GRANTING THE PETITION

This case presents a significant question concern-

ing the proper mode and timing of judicial review of a

jurisdictional determination stating that particular

property contains “waters of the United States” cov-

ered by the CWA. 33 U.S.C. 1362(7). The court of

appeals held that a jurisdictional determination is

reviewable “final agency action” under the APA. 5

U.S.C. 704. That ruling conflicts with the Fifth Cir-

cuit’s recent decision in Belle Co. v. United States

Army Corps of Engineers, 761 F.3d 383 (2014), cert.

denied sub nom. Kent Recycling Services, LLC v.

United States Army Corps of Engineers, 135 S. Ct.

1548 (2015), petition for reh’g pending, No. 14-493

(filed Apr. 16, 2015).

A square but shallow circuit conflict thus has de-

veloped on the question whether, in light of this

Court’s decision in Sackett v. EPA, 132 S. Ct. 1367

(2012), a Corps jurisdictional determination is judicial-

ly reviewable final agency action. In addition to this

* Recipients of approved jurisdictional determinations predating

the new rule have the option, however, of requesting that the

Corps issue a new jurisdictional determination under the new rule.

80 Fed. Reg. at 37,074. In that event, the Corps would reconsider

the CWA-coverage issue in light of current conditions on the

property and the standards announced in the new rule.

petition seeking review of the Eighth Circuit’s deci-

sion, a petition for rehearing of this Court’s denial of

certiorari in Kent Recycling Services, LLC v. United

States Army Corps of Engineers (No. 14-493) is cur-

rently pending before the Court.’ In that case, how-

ever, there are significant questions concerning

whether petitioner Kent Recycling has standing and

whether the case remains live. See 14-493 Br. in Opp.

8-12; 14-493 Br. in Opp. to Pet. for Reh’g 5-8. If the

Court concludes that the question presented here

should be resolved now rather than left for further

percolation in the courts of appeals, this case would

provide a more suitable vehicle than Kent Recycling

for resolution of that issue.

A. The Decision Below Created A Circuit Conflict

1. As the court of appeals acknowledged, App., in-

fra, 2a, its decision squarely conflicts with the Fifth

Circuit’s decision in Belle, supra. There, the Fifth

Circuit held that a jurisdictional determination does

not satisfy the test for final agency action set forth in

Bennett v. Spear, 520 U.S. 154, 177-178 (1997), be-

cause it does not impose legal obligations or conse-

quences beyond those already imposed by the CWA

itself. Belle, 761 F.3d at 389-394. The decision below

also conflicts with the Ninth Circuit’s pre-Sackett

decision in Fairbanks North Star Borough v. U.S.

Army Corps of Engineers, 543 F.3d 586 (2008), cert.

denied, 557 U.S. 919 (2009) (Fairbanks).

* Because the petition for a writ of certiorari seeking review of

the Fifth Circuit’s decision in Belle, supra, is captioned Kent

Recycling Services, LLC v. United States Army Corps of Engi-

neers (No. 14-493) in this Court, this brief refers to the petition in

No. 14-493 as Kent Recycling.

Unlike the Eighth Circuit, the Fifth Circuit in Belle

concluded that this Court’s decision in Sackett does

not mandate the conclusion that a jurisdictional de-

termination is final agency action. Belle, 761 F.3d at

391-392. The Fifth Circuit explained that the EPA

compliance order at issue in Sackett imposed legal

obligations and consequences that went beyond those

imposed by the CWA. /d. at 391 (citing Sackett, 132 S.

Ct. at 1871-1372). Unlike a compliance order, the

Fifth Circuit explained, a jurisdictional determination

is simply a “notification of the property’s classification

as wetlands” that “does not state that [the recipient] is

in violation of the CWA,” does not increase the recipi-

ent’s exposure to penalties, and does not affect its

ability to obtain a permit. /d. at 391-393.

2. The division between the Fifth and Eighth Cir-

cuits is unlikely to be resolved without this Court’s

intervention. The Eighth Circuit was aware of the

Fifth Circuit’s contrary ruling in Belle when it issued

the decision below. App., infra, 2a. The government

sought rehearing en banc on the ground that the deci-

sion created a conflict with Belle, but the Eighth Cir-

cuit denied the petition. /d. at 103a-104a. The circuit

conflict is therefore likely to endure until this Court

resolves the issue.

B. The Decision Below Is Incorrect

To be final agency action under 5 U.S.C. 704, an

agency determination “must be one by which rights or

obligations have been determined, or from which legal

consequences will flow.” Bennett, 520 U.S. at 178

(citation and internal quotation marks omitted). The

court of appeals concluded that the jurisdictional

determination at issue in this case satisfies that

standard because it “requires [respondents] either to

incur substantial compliance costs (the permitting

process), forego what they assert is lawful use of their

property, or risk substantial enforcement penalties.”

App., infra, lla. That is incorrect. The jurisdictional

determination does not create the quandary that con-

cerned the court, since a landowner who has not re-

ceived a jurisdictional determination faces precisely

the same set of options, and precisely the same expo-

sure to penalties for any CWA violations that his con-

duct may entail. Receipt of a jurisdictional determina-

tion simply provides the landowner with additional

information that may assist him in choosing among

the available options.

1. a. A jurisdictional determination informs the

landowner of the Corps’ view that particular property

contains “waters of the United States” and is there-

fore subject to the CWA’s prohibition on unauthorized

pollutant discharges into those waters. 33 U.S.C.

1362(7); see 33 U.S.C. 1311(a). The jurisdictional

determination does not direct the landowner to take

(or refrain from taking) any action, and it does not

impose any obligations not already imposed by the

CWA. If the property in fact contains waters of the

United States, the CWA requires the landowner to

obtain a permit before discharging pollutants into

those waters, whether or not he has requested or

received a jurisdictional determination. 33 U.S.C.

1311(a), 1342, 1344; 33 C.F.R. 331.2.

The jurisdictional determination also does not alter

the manner in which the Corps may enforce the CWA.

Whether or not the Corps has issued a jurisdictional

determination, if the Corps or the EPA concludes that

a landowner has violated the CWA by discharging

pollutants without a permit, the EPA may issue an

administrative compliance order (of the sort at issue

in Sackett), or it may institute an administrative pen-

alty proceeding and impose a penalty. 33 U.S.C.

1319(a) and (g). Both types of administrative action

afford the landowner the opportunity to obtain imme-

diate judicial review of the agency’s underlying con-

clusion that the land contains waters of the United

States. See 33 U.S.C. 1319(g)(8) (providing for judi-

cial review of administrative penalty decision); Sack-

ett, 132 S. Ct. at 1371-1372 (compliance orders are

reviewable under the APA).

Such enforcement actions are necessarily predicat-

ed on the agency’s assessment that the CWA applies

to the waters in question; but the fact that the Corps

has previously expressed that assessment in a juris-

dictional determination does not affect the landown-

er’s rights in an administrative penalty proceeding.

See 33 U.S.C. 1319(a) and (g); Rochester Tel. Corp. v.

United States, 307 U.S. 125, 129-130 (1939). Similarly

if the United States commences a judicial enforcement

action, the Corps’ prior issuance of a jurisdictional

determination would not alter the United States’ bur-

den of establishing that the land in fact contains wa-

ters of the United States. 33 U.S.C. 1319(b). And if

the landowner is ultimately found liable in any of

those proceedings, the jurisdictional determination

does not alter the range of potential sanctions to

which the landowner is subject under the CWA. 33

U.S.C. 1319(d). Thus, before and after a jurisdictional

determination is issued, the landowner faces the same

legal regime, the same potential obligations, and the

same legal exposure.‘

‘4 The court of appeals believed that a jurisdictional determina-

‘tion increases “the penalties [respondents] would risk if they chose

b. In concluding that a jurisdictional determination

satisfies Bennett’s second prong, the court of appeals

conflated the potential practical effects of a jurisdic-

tional determination with the altered legal obligations

that are required under Bennett. App., infra, 1la-13a.

It is true that, as a practical matter, a landowner who

receives a jurisdictional determination that his prop-

erty contains CWA-protected waters may have a

greater incentive to seek a permit than someone who

has not received a similar determination. But that

incentive arises solely from the additional information

that a jurisdictional determination conveys to the

landowner about the agency’s view of the CWA’s cov-

erage. When an agency communication does not alter

the legal obligations or sanctions to which the recipi-

ent is already subject, that sort of practical effect is

not sufficient to render the communication “final

agency action.” See National Ass'n of Home Builders

to begin mining without a permit” because violating the CWA after

receiving a jurisdictional determination would result in “substan-

tial criminal monetary penalties and even imprisonment for a

knowing CWA violation.” App., infra, 15a. That is incorrect. The

CWA directs a court, in assessing an appropriate civil penalty for a

violation, to consider, inter alia, any “good-faith efforts” to comply

with the CWA’s requirements. 33 U.S.C. 1319%d). In addition, the

CWA imposes criminal penalties for violating certain enumerated

provisions of the statute, and knowing violations are subject to

greater potential penalties. 33 U.S.C. 1319(c)(1)-(2). But those

provisions do not mention, much less assign any particular eviden-

tiary weight to, the Corps’ prior issuance of a jurisdictional deter-

mination. At most, a property owner’s receipt of a jurisdictional

determination might be offered as evidence of the owner’s

knowledge of its obligations under the CWA. See Fairbanks, 543

F.3d at 595. But the same could be said of any number of non-final

agency warnings or opinion letters, or even a private consultant’s

report.

v. Norton, 415 F.3d 8, 13-16 (D.C. Cir. 2005) (incentive

to comply voluntarily with agency’s guidance concern-

ing underlying statutory obligation is insufficient to

establish legal consequences under Bennett).

The court of appeals therefore erred in likening a

jurisdictional determination to a regulation or order

that “prohibits a party from taking otherwise lawful

action.” App., infra, lla. The decisions on which the

court relied (id. at 1la-13a) all concerned regulatory

actions that imposed additional legal requirements,

beyond those established by statute, with which regu-

lated parties were required to comply. See Bennett,

520 U.S. at 178 (where agency opinion authorized

entities to “take” endangered species only upon ful-

fillment of conditions listed in the opinion, and entities

could be penalized for violating those conditions, opin-

ion “alter[ed] the legal regime”); Abbott Labs. v.

Gardner, 387 U.S. 136, 151-152 (1967) (regulations

were final because they “ha[d] the status of law and

violations of them carry heavy criminal and civil sanc-

tions”); Columbia Broad. Sys., Inc. v. United States,

316 U.S. 407, 418 (1942) (regulations had the “force of

law” because they “require [the Federal Communica-

tions Commission] to reject and authorize it to cancel

licenses on the grounds specified in the regulations

without more”); see also Frozen Food Express v.

United States, 351 U.S. 40, 41-45 (1956) (order deter-

mining which commodities fell within a statutory “ag-

ricultural” exemption to a permitting requirement was

final because it established a rule of general applica-

bility that had the force of law).

ce. The court of appeals’ reliance on Sackett was

misplaced. In holding that the EPA compliance order

at issue in Sackett was final agency action, the Court

did not rely on the pragmatic incentives that recipi-

ents likely felt upon being notified of the agency’s

allegations that their property contained covered

waters and that they had violated the CWA. Rather,

the Court found dispositive the fact that the compli-

ance order materially increased both the landowners’

legal obligations and the penalties to which they were

potentially subject. 132 S. Ct. at 1371-1372. A juris-

dictional determination does not similarly alter the

legal status quo.

Specifically, the Sackett Court explained that the

compliance order imposed a “legal obligation” on the

Sacketts to “‘restore’ their property according to an

agency-approved Restoration Work Plan,” and to give

the EPA access to the property and relevant docu-

mentation. 132 S. Ct. at 1871. Those obligations arose

“(bly reason of the [compliance] order,” not as a result

of the CWA itself. /bid. The Sackett Court further

concluded that “‘legal consequences flow’ from

issuance of the [compliance] order” because, under the

CWA, a landowner can be liable for penalties for vio-

lating the compliance order itself, in addition to penal-

ties for violating the Act. /bid. (quoting Bennett, 520

U.S. at 178) (citation and internal quotation marks

omitted). The compliance order also “severely lim-

itted] the Sacketts’ ability to obtain a permit for their

fill” under Corps regulations that restrict the availa-

bility of permits for activities that are the subject of a

compliance order. Jd. at 1372.

A jurisdictional determination possesses none of

the characteristics that were dispositive in Sackett. It

does not require the recipient to take any action, re-

medial or otherwise. Nor does it expose a recipient to

any additional penalties beyond those that the CWA

provides for violating the statute. 33 U.S.C. 1319(d).

A jurisdictional determination also has no impact on

the recipient’s ability to obtain a permit, since the

regulations limiting permits following a compliance

order do not apply to jurisdictional determinations.

See 33 C.F.R. 326.3(e)(1)(iv). And because jurisdic-

tional determinations (unlike EPA compliance orders)

are typically provided to persons who request them,

they are not easily used “to enable the strong-arming

of regulated parties.” Sackett, 132 S. Ct. at 1374.

2. Even if a jurisdictional determination satisfied

Bennett’s requirements for final agency action, review

would be available under the APA only if there is “no

other adequate [judicial] remedy.” 5 U.S.C. 704.

Contrary to the court of appeals’ conclusion (App.,

infra, 13a-16a), respondents possess adequate alter-

native opportunities to argue in court that their prop-

erty does not contain CWA-protected waters.

The permitting process provides one such avenue.”

When the Corps denies a permit, or issues a permit

subject to conditions that the applicant opposes, the

applicant may seek judicial review of that decision,

and may contend in that proceeding that any waters

on its property are not covered by the Act. See 33

U.S.C. 1344(a); 33 C.F.R. 331.10, 331.12; see also Pre-

® In Sackett, the Court concluded that the Corps’ permitting pro-

cess did not provide an adequate means of seeking review of an

EPA compliance order. That holding, however, was based on a cir-

cumstance not present here. Because the EPA had issued the

compliance order, the Court stated that judicial review of the

Corps’ permitting decision would not “provide an ‘adequate reme-

dy’ for action already taken by another agency.” 132 S. Ct. at 1372.

Here, the Corps “issued the [jurisdictional determination], so it is

not the case that the only alternative remedy is one provided by a

different agency.” Belle, 761 F.3d at 394 n.4.

con Dev. Corp. v. United States Army Corps of

Eng’rs, 633 F.3d 278, 287-297 (4th Cir. 2011). Many

parties have obtained judicial review of a CWA-

coverage issue through that route. See, e.g., Carabell

v. United States, 391 F.3d 704, 706-707 (6th Cir. 2004),

vacated on other grounds sub nom. Rapanos v. United

States, 547 U.S. 715 (2006). And if the Corps grants a

permit that the applicant accepts, there will be no

need for judicial review of the threshold jurisdictional

determination.

A recipient of a jurisdictional determination who

elects to proceed with discharges on his property may

also seek judicial review of the CWA coverage issue if

he is the subject of an agency-initiated enforcement

proceeding. If the agency imposes administrative

penalties, 33 U.S.C. 1319(g), or issues an EPA compli-

ance order, 33 U.S.C. 1319(a), those actions are imme-

diately reviewable. See pp. 4-5, supra. The United

States could also initiate a judicial enforcement action,

in which it would have to demonstrate by a prepon-

derance of the evidence that the property contains

covered waters. 33 U.S.C. 1319(b).

To be sure, the permitting process can sometimes

be expensive, and a landowner who discharges

dredged or fill material without a permit may face

monetary penalties if a court ultimately concludes that

the discharges occurred into CWA-protected waters.

It is therefore understandable that persons in re-

spondents’ position would prefer a pre-permit, pre-

discharge judicial ruling on the CWA coverage issue.

Neither the CWA nor the applicable agency regula-

tions, however, require the Corps to issue jurisdic-

tional determinations, either in general or in any par-

ticular case. If respondents had not received a juris-

dictional determination, they could have obtained a

judicial ruling on the coverage question only through

the routes described above, 2e., by applying for a

permit and then seeking judicial review of the Corps’

decision on that application, or by contesting the

CWA’s applicability in opposing any enforcement

action. The fact that respondents requested and re-

ceived a jurisdictional determination does not make

those avenues of review any less “adequate” than they

would otherwise be.

C. The Question Presented Is Recurring And Significant

1. The Corps issues tens of thousands of approved

jurisdictional determinations every year. See 80 Fed.

Reg. at 37,065; Corps, Regulatory—Protecting the

Integrity of America’s Waters (Feb. 2, 2015), http://

www.usace.army.mil/Portals/2/docs/civilworks/bud-

get/strongpt/fyl6sp regulatory.pdf. Although the

CWA does not require the Corps to issue jurisdiction-

al determinations, see 33 C.F.R. 320.1(a)(6), the Corps

provides them in order to give requesting landowners

information about the agency’s view of CWA coverage.

And while no statutory or regulatory provision re-

quires property owners to seek jurisdictional deter-

minations before undertaking plans for their property

or applying for a permit, those who request them are

able to take the agency’s views on CWA coverage into

account in deciding how best to proceed.

Under the court of appeals’ decision, a landowner

who disagrees with the agency’s approved jurisdic-

tional determination may obtain judicial review imme-

diately, before the Corps has had an opportunity to

consider whether the landowner’s contemplated activi-

ties would require a CWA permit, whether those ac-

tivities are already covered by a general permit, see

33 U.S.C. 1344(e)(1), or whether an application for an

individual permit should be granted. And if the Corps

prevails in such a suit, the court’s decision will not

definitively resolve the CWA coverage question. If

jurisdictional determinations are reviewable under the

APA, they would presumably be reviewed under the

APA’s deferential “arbitrary [and] capricious” stand-

ard. 5 U.S.C. 706(2)(A). A judicial decision upholding

a jurisdictional determination under that standard

would not prevent the landowner from arguing, in a

subsequent civil enforcement action, that the agency

had failed to prove by a preponderance of the evidence

that the property in question contained waters of the

United States.

Allowing immediate judicial review of the Corps’

jurisdictional determinations would therefore create a

system of piecemeal and potentially duplicative pro-

ceedings. That prospect might deter the Corps from

engaging in an informationa’ practice that is triggered

by a landowner’s request and is intended to benefit

landowners as well as to promote compliance with the

CWA. See Belle, 761 F.3d at 394 (immediate judicial

review would “disincentivize the Corps from providing

[jurisdictional determinations],” thereby “under-

min{ing] the system through which property owners

can ascertain their rights and evaluate their options”).

2. The question presented is likely to recur. The

Corps issues thousands of jurisdictional determina-

tions each year, and the Eighth Circuit’s decision in

this case will likely encourage other regulated parties

to seek immediate judicial review. Indeed, at least

one other suit seeking review of a jurisdictional de-

termination is currently pending before a district

court in the Seventh Circuit. See Orchard Hill Bldg.

Co. v. United States Army Corps of Eng’rs, 1:15-cev-

6344 Docket entry No. 1 (N.D. Ill. July 21, 2015).

D. This Case Is A Better Vehicle Than Kent Recycling

For Addressing The Question Presented

The petition for a writ of certiorari in Kent Recy-

cling likewise presents the question whether a Corps

jurisdictional determination is judicially reviewable

under the APA. 14-493 Pet. i. The Court denied cer-

tiorari in Kent Recycling in March 2015, shortly be-

fore the Eighth Circuit issued its decision in this case.

Kent Recycling then sought rehearing on the basis of

the circuit conflict created by the Eighth Circuit’s

decision, see 14-493 Pet. for Reh’g 3-6, and the peti-

tion for rehearing remains pending before this Court.

If the Court concludes that the question presented

warrants its review, this case is the better of the two

vehicles for resolving the issue.

1. As the government explained in its brief in op-

position to the certiorari petition in Kent Recycling, it

is unclear whether Kent Recycling has standing to

seek this Court’s review and whether the case contin-

ues to present a live controversy. See 14-493 Br. in

Opp. 8-12. Although Kent Recycling alleges that it

holds an option to purchase the property in question,

14-493 Pet. App. A2; see id. at D4 (3:12-cv-247 Compl.

1 14), the owner of the property at issue did not file its

own certiorari petition challenging the Fifth Circuit’s

decision, and is actively pursuing a permit to use the

property as part of a mitigation bank (i.e., as wetlands

that will be protected in order to offset authorized

impacts on other waters protected by the CWA), see

14-493 Br. in Opp. 11-12. In addition, the jurisdiction-

al determination at issue in Kent Recycling expired by

its terms on May 15, 2014. 14-493 Pet. App. E2; 14-

493 Br. in Opp. 12 n.3. Although the Corps might (or

might not) reach the same coverage determination

under the new “waters of the United States” rule, the

expiration of the purported “final agency action” that

Kent Recycling seeks to challenge creates a further

potential threshold obstacle to this Court’s resolution

of the question presented in that case.

2. This case, by contrast, presents no significant

defects as a vehicle for addressing the question wheth-

er a jurisdictional determination is final agency action.

Respondents in this case include the owners of the

relevant land, and there is no reason to doubt their

continuing interest in mining peat on the property.

And while the jurisdictional determination respond-

ents seek to challenge was issued under the agency’s

previous interpretation of CWA coverage, which has

been superseded by the new rule, the jurisdictional

determination itself is valid until 2017. Unless re-

spondents request a new jurisdictional determination

under the new rule, they will retain a continuing in-

terest in whether the existing jurisdictional determi-

nation is immediately reviewable.

Thus, if the Court concludes that the question pre-

sented warrants its review at this time, the Court

should grant this petition for a writ of certiorari. The

petition for rehearing in Kent Recycling (No. 14-493)

could then be held pending the resolution of this case,

and disposed of as appropriate in light of the Court’s

decision.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

DONALD B. VERRILLI, JR.

Solicitor General

JOHN C. CRUDEN

Assistant Attorney General

MALCOLM L. STEWART

Deputy Solicitor General

GINGER D. ANDERS

Assistant to the Solicitor

DAVID R. COOPER General

Chief Counsel JENNIFER SCHELLER NEUMANN

United States Army ROBERT J. LUNDMAN

Corps of Engineers Attorneys

SEPTEMBER 2015

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 13-3067

HAWKES Co., INC., ET AL., PLAINTIFFS-APPELLANTS

UNITED STATES ARMY CORPS OF ENGINEERS,

DEFENDANT-APPELLEE

AMERICAN FARM BUREAU FEDERATION;

NATIONAL ASSOCIATION OF HOME BUILDERS;

NATIONAL MINING ASSOCIATION; AMERICAN

PETROLEUM INSTITUTE; UTILITY WATER ACT

GROUP; FOUNDATION FOR ENVIRONMENTAL AND

ECONOMIC PROGRESS, AMICI ON BEHALF OF

APPELLANTS

Submitted: Dee. 11, 2014

Filed: Apr. 10, 2015

Before: LOKEN, BRIGHT, and KELLY, Circuit

Judges.

LOKEN, Circuit Judge.

Hawkes Co., Inc. (Hawkes), wishes to mine peat

from wetland property owned by two affiliated compa-

nies in northwestern Minnesota. The United States

Army Corps of Engineers derailed that plan when it

issued an Approved Jurisdictional Determination

(“JD”) that the property constitutes “waters of the

(la)

United States” within the meaning of the Federal

Water Pollution Control Act (the “Clean Water Act” or

“CWA”), and therefore appellants must have a permit

to discharge dredged or fill materials into these “nav-

igable waters.” See 33 U.S.C. §§ 1344(a), 1362(7).

Appellants brought this action seeking judicial review

of the JD and now appeal the district court’s grant of

the government’s motion to dismiss their Amended

Complaint. The district court concluded that an

approved JD, though the consummation of the Corps’

jurisdictional decisionmaking process, was not a “final

agency action” within the meaning of the Administra-

tive Procedure Act, 5 U.S.C. § 704. While the appeal

was pending, a panel of the Fifth Circuit reached the

same conclusion. Belle Co., LLC v. U.S. Army Corps

of Eng’rs, 761 F.3d 383 (5th Cir. 2014), cert. denied, _

U.S. _, 185 S. Ct. 1548, = L. Ed. 2d ___, 83 U.S.L.W.

3291 (U.S. Mar. 23, 2015) (No. 14-493).

We conclude that both courts misapplied the Su-

preme Court’s decision in Sackett v. EPA, US. _,

132 S. Ct. 1367, 182 L. Ed. 2d 367 (2012). Therefore,

we reverse.

The CWA requires a permit from the Corps to

discharge dredged or fill materials into “navigable

waters,” and a permit from the Environmental Protec-

tion Agency (or an authorized state agency) to dis-

charge any “pollutant” into navigable waters. See 33

U.S.C. §§ 1311(a), 1342, 1344. The statute defines

“navigable waters” to mean “the waters of the United

States,” § 1362(7). This broad definition prompted

the Corps and the EPA to make “sweeping assertions

of jurisdiction” over every stream, ditch, and drain

that can be considered a tributary of, and every wet-

land that is adjacent to, traditional navigable waters.

Rapanos v. United States, 547 U.S. 715, 726-727, 126 S.

Ct. 2208, 165 L. Ed. 2d 159 (2006) (plurality opinion).

In United States v. Riverside Bayview Homes, Inc.,

474 U.S. 121, 139, 106 S. Ct. 455, 88 L. Ed. 2d 419

(1985), the Supreme Court held that the Corps may

require permits for the discharge of fill material into

wetlands adjacent to the “waters of the United

States.” But in Solid Waste Agency of Northern

Cook County v. U.S. Army Corps of Engineers, 531

U.S. 159, 166, 121 S. Ct. 675, 148 L. Ed. 2d 576 (2001),

the Court rejected the Corps’ assertion of CWA juris-

diction over “nonnavigable, isolated, intrastate waters”

where migratory birds are present. And in Rapanos,

the Court concluded that the Corps’ asserted jurisdic-

tion over “wetlands based on adjacency to nonnaviga-

ble tributaries” went beyond its statutory authority.

547 U.S. at 782, 126 S. Ct. 2208 (Kennedy, J., concur-

ring in the judgment). Because the Court’s plurality

and Justice Kennedy adopted different narrower tests

to determine when wetlands are “waters of the United

States,” we held “that the Corps has jurisdiction over

wetlands that satisfy either test” in United

States v. Bailey, 571 F.3d 791, 799 (8th Cir. 2009).

The CWA imposes heavy civil and criminal penal-

ties on a person who discharges into navigable waters

without a required permit, or in violation of an issued

permit. See 33 U.S.C. § 1319; Rapanos, 547 U.S. at

721, 126 S. Ct. 2208. When the Corps or the EPA

finds that a person is violating the CWA’s discharge

restrictions, or a permit issued under the CWA, the

agency “shall issue an order requiring such person to

comply,” as in Sackett, or bring a civil enforcement

action, as in Riverside Bayview Homes and Rapanos.

See 33 U.S.C. $§ 1319(a)(3) (EPA) and 1344(s) (Corps).

In Sackett, the EPA issued an administrative compli-

ance order against a person for depositing fill into

jurisdictional wetlands without a permit, ordering,

among other remedies, that the site be restored. The

EPA persuaded the lower courts the order was not

subject to “pre-enforcement judicial review.” Apply-

ing the test for determining a final agency action in

Bennett v. Spear, 520 U.S. 154, 177-78, 117 S. Ct. 1154,

137 L. Ed. 2d 281 (1997), a unanimous Court held that

the compliance order was a final agency action subject

to immediate judicial review under the APA:

[Ijt is hard for the Government to defend its claim

that the issuance of the compliance order was just

“a step in the deliberative process” when the agen-

cy rejected the Sacketts’ attempt to obtain a hear-

ing and when the nezt step will either be taken by

the Sacketts (if they comply with the order) or will

involve judicial, not administrative, deliberation (if

the EPA brings an enforcement action). 132 S. Ct.

at 1373.

The question in this case is whether the Court’s

application of its flexible final agency action standard

in Sackett’ should also apply in this case, where ap-

pellants seek judicial review of an adverse JD without

either completing the CWA permit process or risking

substantial enforcement penalties by mining peat and

discharging dredged or fill materials without a permit.

That question requires a close look at the allegations in

their Amended Complaint.

Il.

In reviewing the district court’s Rule 12(b)(6) dis-

missal, we accept as true the facts alleged in the

Amended Complaint. Hawkes is in the business of

mining and processing peat, a “wetland dependant”

activity regulated in Minnesota through permits issued

by the Minnesota Department of Natural Resources.

Pierce Investment Co. and LPF Properties, LLC, have

property interests in a 530-acre parcel in northwestern

Minnesota that contains high quality peat near

' The Court has consistently taken a “pragmatic” and “flexible”

approach to the question of finality, and to the related question

whether an agency action is ripe for judicial review. See Abbott

Labs. v. Gardner, 387 U.S. 136, 148-50, 87 S. Ct. 1507, 18 L. Ed. 2d

681 (1967); accord Bell v. New Jersey, 461 U.S. 773, 779, 103 S. Ct.

2187, 76 L. Ed. 2d 312 (1983); Pac. Gas & Elec. Co. v. State Energy

Res. Conserv. & Dev. Comm'n, 461 U.S. 190, 200-201, 103 S. Ct.

1713, 75 L. Ed. 2d 752 (1983).

Hawkes’s existing peat-mining operations. All three

companies are owned by members of the Pierce family.

After obtaining an option to purchase the property

subject to regulatory approval, Kevin Pierce and

Hawkes met with Corps and MDNR representatives to

discuss Hawkes’s plan to expand its operations to

include the property, which would extend the life of its

peat mining ten to fifteen years. In December 2010,

Hawkes applied to the Corps for a CWA permit. Ata

January 2011 meeting, Corps representatives urged

Pierce to abandon his plan, emphasizing the delays,

cost, and uncertain outcome of the permitting process.

Pierce responded that he had an option to purchase

and intended to proceed. In March, the Corps sent a

letter advising it had made a “preliminary determina-

tion” the wetland is a regulated water of the United

States and, “at a minimum,” an environmental as-

sessment would be required. At an April meeting, a

Corps representative told Pierce a permit would take

years and the process would be very costly. During a

site visit in early June, another Corps representative

told a Hawkes employee that “he should start looking

for another job.” In August, the Corps sent Hawkes

a letter advising that nine additional information items

costing more than $100,000 would be needed, including

hydrological and functional resource assessments and

an evaluation of upstream potential impacts. In No-

vember, Corps representatives met with the land

owner and urged that he sell the property to a “wet-

lands bank,” advising that an environmental impact

statement would likely be required, delaying the issu-

ance of any permit for several years.

Appellants challenged the Corps’ preliminary de-

termination. In November, the Corps provided a

“draft” JD concluding the property was connected by a

“Relatively Permanent Water” (a series of culverts

and unnamed streams) that flowed into the Middle

River and then into the Red River of the North, a

traditional navigable water some 120 miles away.

Appellants’ wetland consultant pointed out numerous

errors in the analysis. Nonetheless, in February 2012

the Corps issued an Approved JD concluding the pro-

perty was a water of the United States because of its

“significant nexus” to the Red River. See 33 C.F.R.

§§ 320.1(a)(6), 325.9. Appellants responded by filing a

timely administrative appeal. See 33 C.F.R. §§ 331.2,

331.3, 331.6.

In October 2012, the Corps’ Deputy Commanding

General for Civil and Emergency Operations sustained

the appeal, concluding after detailed analysis that the

administrative record “does not support [the Dis-

trict’s] determination that the subject property con-

tains jurisdictional wetlands and waters,” and re-

manding to the District “for reconsideration in light of

this decision.” On December 31, 2012, the Corps

nonetheless issued a Revised JD concluding, without

additional information, that there is a significant nexus

between the property and the Red River of the North,

and advising appellants that the Revised JD was a

“final Corps permit decision in accordance with 33

C.F.R. § 331.10,” which meant their administrative

remedies were exhausted. See 33 C.F.R. § 331.12.

Appellants then filed this action seeking judicial

review of the Revised JD, alleging that it does not

meet either of the applicable tests for the assertion of

CWA jurisdiction established in Rapanos—the plural-

ity’s “relatively permanent” test, or Justice Kennedy’s

“significant nexus” test. The Corps moved to dismiss

the complaint, arguing the Revised JD was not a final

agency action and the issue was not ripe for judicial

review. The district court dismissed the complaint

for lack of final agency action. Hawkes Co., Inc. v.

U.S. Army Corps of Eng’rs, 963 F Supp. 2d 868, 871,

878 (D. Minn. 2013). This appeal followed.

The APA provides for judicial review of a “final

agency action for which there is no other adequate

remedy in a court.” 5 U.S.C. § 704. The APA

“evinces Congress’ intention and understanding that

judicial review should be widely available to challenge

the actions of federal administrative officials.” Cali-

fano v. Sanders, 430 U.S. 99, 104, 97 S. Ct. 980, 51

L. Ed. 2d 192 (1977). When an agency action is final

and, if final, appropriate for judicial review are issues

that have arisen in a variety of federal agency contexts

in the past one hundred years. See, e.g., Port of Bos.

Marine Terminal Ass’n v. Rederiaktiebolaget Trans-

atl., 400 U.S. 62, 70-71, 91 S. Ct. 203, 27 L. Ed. 2d 203

(1970); Rochester Tel. Corp. v. United States, 307 U.S.

125, 132 n.11, 143-44, 59 S. Ct. 754, 83 L. Ed. 1147

(1939). In Bennett, 520 U.S. at 177-78, 117 S. Ct.

1154, the Court synthesized its prior precedents on the

first issue:

As a general matter, two conditions must be satis-

fied for agency action to be “final”: First, the ac-

tion 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 conse-

quences will flow.

A. Though the Corps argues otherwise, we agree

with the district court (and every court to consider the

issue) that the Revised JD clearly meets the first

Bennett factor—it was the consummation of the Corps’

decisionmaking process on the threshold issue of the

agency’s statutory authority. See Belle Co., 761 F.3d

at 389-90; Fairbanks N. Star Borough v. U.S. Army

Corps of Eng’rs, 543 F.3d 586, 591-93 (9th Cir. 2008).

The regulations provide that an Approved JD “consti-

tute[s] a Corps final agency action.” 33 C.F.R.

§ 320.1(a)(6). The Corps’ Regulatory Guidance Let-

ter No. 08-02, at 2, 5, described an Approved JD as a

“definitive, official determination that there are, or

that there are not, jurisdictional ‘waters of the United

States’ on a site,” and stated that an Approved JD “can

be relied upon by a landowner, permit applicant, or

10a

other affected party for five years” (quotation

omitted). Jurisdictional determinations and permit-

ting decisions are discrete agency actions; a party may

obtain a JD without seeking a permit, and may obtain

a permit without seeking an Approved JD. Fair-

banks, 543 F.3d at 593. Thus, when an Approved JD

has issued, “the process of administrative decision-

making has reached a stage where judicial review will

not disrupt the orderly process of adjudication.” Port

of Bos., 400 U.S. at 70-71, 91 S. Ct. 203; see Ohio For-

estry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 733, 118

S. Ct. 1665, 140 L. Ed. 2d 921 (1998). The possibility

that the agency might informally reconsider its deci-

sion “does not suffice to make an otherwise final

agency action non-final.” Sackett, 132 S. Ct. at 1372

(quotation omitted).

B. The district court concluded that the Approved

JD does not satisfy Bennett’s second factor because it

is not an agency action “by which ‘rights or obligations

have been determined,’ or from which ‘legal conse-

quences will flow.’” In Sackett, the EPA compliance

order required petitioners to restore property they

had altered without a permit and subjected them to the

risk of $75,000 per day in penalties if they chose to

disobey. By contrast, the district court reasoned, ap-

pellants “face no such obligations or changes in their

rights as a result of their jurisdictional determination.”

They “may pursue a permit without a disadvantage.”

963 F Supp. 2d at 876-77.

lla

1. In our view, this analysis seriously understates

the impact of the regulatory action at issue by exag-

gerating the distinction between an agency order that

compels affirmative action, and an order that prohibits

a party from taking otherwise lawful action. Numer-

ous Supreme Court precedents confirm that this is not

a basis on which to determine whether “rights or obli-

gations have been determined” or that “legal conse-

quences will flow” from agency action.

—In Bennett, the Court held that a Fish and Wild-

life Service biological opinion satisfied the second

factor because it required the Bureau of Reclamation

to comply with its conditions and thereby had “direct

and appreciable legal consequences.” 520 U.S. at 158,

178, 117 S. Ct. 1154. Though not self-executing, the

biological opinion was mandatory. Likewise, here,

the Revised JD requires appellants either to incur

substantial compliance costs (the permitting process),

forego what they assert is lawful use of their property,

or risk substantial enforcement penalties.

—In Abbott Laboratories, the Court held that pre-

scription drug labeling regulations were a final agency

action subject to pre-enforcement judicial review be-

cause they “purport to give an authoritative interpre-

tation of a statutory provision” that puts drug compa-

nies in the dilemma of incurring massive compliance

costs or risking criminal and civil penalties for distrib-

uting “misbranded” drugs. 387 U.S. at 152-53, 87

S. Ct. 1507.

12a

—In Frozen Food Express v. United States, 351

U.S. 40, 76 S. Ct. 569, 100 L. Ed. 910 (1956), plaintiff

sought judicial review of an Interstate Commerce

Commission order declaring that certain agricultural

commodities were not exempt from regulations re-

quiring carriers to obtain a permit to transport. I/d.

at 41-42, 76 S. Ct. 569. As in this case, the order

“would have effect only if and when a particular action

was brought against a particular carrier.” Abbott

Labs., 387 U.S. at 150, 87 S. Ct. 1507. The Court

nonetheless held the order reviewable because the

“determination by the Commission that a commodity is

not an exempt agricultural product has an immediate

and practical impact”; it “warns every carrier, who

does not have authority from the Commission to trans-

port those commodities, that it does so at the risk of

incurring criminal penalties.” Frozen Food Express,

351 U.S. at 43-44, 76 S. Ct. 569. Here, the Revised JD

is a determination regarding a specific property that

has an even stronger coercive effect than the order

deemed final in Frozen Food Express, which was not

directed at any particuiar carrier. In Port of Boston,

400 U.S. at 70-71, 91 S. Ct. 203, the Court rejected as

having “the hollow ring of another era” the contention

that an “order lacked finality because it had no inde-

pendent effect on anyone,” citing Frozen Food Ex-

press.

—In Columbia Broadcasting System v. United

States, 316 U.S. 407, 62 S. Ct. 1194, 86 L. Ed. 1563

(1942), the Court held that FCC regulations barring

13a

the licensing of stations that enter into network con-

tracts, though not self-executing, were subject to im-

mediate review. “It is enough that, by setting the

controlling standards for the Commission’s action, the

regulations purport to operate to alter and affect ad-

versely appellant’s contractual rights and business

relations with station owners whose application for

licenses the regulations will cause to be rejected.” /d.

at 422, 62 S. Ct. 1194. Here, the Revised JD alters

and adversely affects appellants’ right to use their

property in conducting a lawful business activity.

The adverse effect is caused by agency action, not

simply by the existence of the CWA. Though the

Revised JD is not-self-executing, “the APA provides

for judicial review of all final agency actions, not just

those that impose a self-executing sanction.” Sackett,

132 S. Ct. at 1373.

2. The Corps argues, and the district court further

concluded, that the Revised JD is not a final agency

action “for which there is no other adequate [judicial]

remedy ' 5 U.S.C. § 704, because appellants have two

other adequate ways to contest the Corps’ jurisdic-

tional determination in court—complete the permit

process and appeal if a permit is denied, or commence

peat mining without a permit and challenge the agen-

cy’s authority if it issues a compliance order or com-

mences a civil enforcement action. These other CWA

remedies were held not to preclude judicial review of

the EPA compliance order in Sackett, 132 S. Ct. at

1372.

l4a

In this case, the contention ignores the prohibitive

cost of taking either of these alternative actions to

obtain judicial review of the Corps’ assertion of CWA

jurisdiction over the property. First, as a practical

matter, the permitting option is prohibitively expen-

sive and futile. The Supreme Court reported in Ra-

panos, 547 U.S. at 721, 126 S. Ct. 2208, that the aver-

age applicant for an individual Corps permit “spends

788 days and $271,596 in completing the process.”

Moreover, the Amended Complaint alleged that the

Corps’ District representatives repeatedly made it

clear to Kevin Pierce, to a Hawkes employee, and to

the landowner that a permit to mine peat would ulti-

mately be refused. In our view, this alone demon-

strates that the second Bennett factor is satisfied.

Moreover, even if appellants eventually complete the

permit process, seek judicial review of the permit

denial, and prevail, they can never recover the time

and money lost in seeking a permit they were not

legally obligated to obtain. Cf. lowa League of Cities

v. EPA, 711 F.3d 844, 868 (8th Cir. 2013).

Second, appellants’ other option—commencing to

mine peat without a permit and await an enforcement

action—is even more plainly an inadequate remedy.

Appellants “cannot initiate that process, and each day

they wait for the agency to drop the hammer, they

accrue” huge additional potential liability. Sackett,

132 S. Ct. at 1372. Because appellants were forth-

right in undertaking to obtain a permit, choosing now

to ignore the Revised JD and commence peat mining

15a

without the permit it requires would expose them to

substantial criminal monetary penalties and even im-

prisonment for a knowing CWA violation. Thus, like

the compliance order at issue in Sackett, the Revised

JD increases the penalties appellants would risk if

they chose to begin mining without a permit. See 33

U.S.C. § 1319(c).

The prohibitive costs, risk, and delay of these al-

ternatives to immediate judicial review evidence a

transparently obvious litigation strategy: by leaving

appellants with no immediate judicial review and no

adequate alternative remedy, the Corps will achieve

the result its local officers desire, abandonment of the

peat mining project, without having to test whether its

expansive assertion of jurisdiction—rejected by one of

their own commanding officers on administrative ap-

peal—is consistent with the Supreme Court’s limiting

decision in Rapanos. For decades, the Corps has

“deliberately left vague” the “definitions used to make

jurisdictional determinations,” leaving its District

offices free to treat as waters of the United States

“adjacent wetlands” that “are connected to the navi-

gable water by flooding, on average, once every 100

years,” or are simply “within 200 feet of a tributary.”

Rapanos, 547 U.S. at 727-28, 126 S. Ct. 2208, quoting a

GAO report. The Court’s decision in Sackett reflect-

ed concern that failing to permit immediate judicial

review of assertions of CWA jurisdiction would leave

regulated parties unable, as a practical matter, to chal-

lenge those assertions. The Court concluded that was

l6a

contrary to the APA’s presumption of judicial review.

“(TJhere is no reason to think that the Clean Water

Act was uniquely designed to enable the strong-arming

of regulated parties into ‘voluntary compliance’ with-

out the opportunity for judicial review—even judicial

review of the question whether the regulated party is

within the EPA’s jurisdiction.” 132 S. Ct. at 1374.

In our view, a properly pragmatic analysis of ripe-

ness and final agency action principles compels the

conclusion that an Approved JD is subject to immedi-

ate judicial review. The Corps’s assertion that the

Revised JD is merely advisory and has no more effect

than an environmental consultant’s opinion ignores

reality. “[I}n reality it has a powerful coercive ef-

fect.” Bennett, 520 U.S. at 169, 117S. Ct. 1154. Ab-

sent immediate judicial review, the impracticality of

otherwise obtaining review, combined with “the un-

certain reach of the Clean Water Act and the draconi-

an penalties imposed for the sort of violations alleged

in this case leaves most property owners with

little practical alternative but to dance to the EPA’s

[or to the Corps’] tune.” “In a nation that values due

process, not to mention private property, such treat-

ment is unthinkable.” Sackett, 132 S. Ct. at 1375 (Ali-

to, J., concurring). We conclude that an Approved JD

17a

is a final agency action and the issue is ripe for judicial

review under the APA.”

The judgment of the district court is reversed and

the case is remanded for further proceedings not in-

consistent with this opinion.

* The question of ripeness “turns on ‘the fitness of the issues for

judicial decision’ and ‘the hardship to the parties of withholding

court consideration.” Pac. Gas & Elec. Co., 461 U.S. at 201, 103

S. Ct. 1713, quoting Abbott Labs., 387 U.S. at 149, 87 S. Ct. 1507.

The issues of ripeness and final agency action are distinct, but in

this case, our analysis of the final agency action factors in Bennett

resolves the ripeness issue as well.

18a

KELLY, Circuit Judge, concurring.

I view whether a JD is reviewable under the APA as

a close question. In Sackett, the Supreme Court

concluded that a compliance order issued by the EPA

“severely limits [petitioners’] ability to obtain a permit

for their fill from the Army Corps of Engineers [be-

cause] [t]he Corps’ regulations provide that, once the

EPA has issued a compliance order with respect to

certain property, the Corps will not process a permit

application for that property unless doing so ‘is clearly

appropriate.’” Sackettv. EPA, U.S. _, 1328S. Ct.

1367, 1372, 182 L. Ed. 2d 367 (2012) (internal citation

omitted) (quoting 33 C.F.R. § 326.3(e)(1)(iv)).2 The

record in the present case does not reveal that a simi-

lar impediment to receiving a permit exists once a JD

has been issued. In Sackett, the Corps had a pub-

lished policy regarding the decreased likelihood of re-

ceiving a permit; here, the record includes case-

specific facts, such as informal comments made by

Corps representatives, suggesting that a permit ap-

plication made by Hawkes might be “futile.” See Ma-

jority Opinion, supra, op. at 1001. However, I ques-

tion how much weight should be given to the futility of

* “No permit application will be accepted nor will the processing

of an application be continued when the district engineer is aware

of enforcement litigation that has been initiated by other Federal,

state, or local regulatory agencies, unless he determines that con-

current processing of an after-the-fact permit application is clearly

appropriate.” 33 C.F.R. § 326.3(e)(1)(iv)

19a

the permit application for an individual applicant, or

the time and cost spent applying, in determining

whether or not the JD constitutes a final agency ac-

tion. IfaJD isa final agency action, an applicant who

is likely to obtain a permit would still be in a position

to seek judicial review of the JD. Similarly, it must

be the case that were the Corps to take steps to make

the permit process both more efficient and less costly,

the reviewability of the JD would not change.

I also note other differences between the compli-

ance order in Sackett and the JD in the present case.

A compliance order, once issued, begins the accumula-

tion of penalties (potentially doubled) for each day the

landowner remains in violation. /d. A JD, however,

has no such penalty scheme. Indeed, 33 U.S.C.

§ 1319(d), the CWA’s enforcement section on civil

penalties, makes no mention of JDs. While the ex-

istence of a JD may affect a court’s assessment of a

party’s “good faith” while determining civil penalties, I

agree with the other courts that have considered this

issue that any penalties resulting from a JD are far

more “speculative” than those threatened in Sackett.

Belle Co., LLC v. U.S. Army Corps of Eng’rs, 761 F.3d

383, 392 (5th Cir. 2014); see also, Fairbanks N. Star

Borough v. U.S. Army Corps of Eng’rs, 543 F.3d 586,

595 (9th Cir. 2008). The Appellants fail to point to a

single case in which increased civil penalties were

levied against a party for ignoring a JD.

20a

Despite these dissimilarities with the circumstances

in Sackett, | agree that Hawkes is left without ac-

ceptable options to challenge the JD, absent judicial

review. Hawkes’s choice is to either (1) follow

through on their peat-mining plans until either the

EPA issues a compliance order or the Corps com-

mences an enforcement action, to both of which

Hawkes could raise lack of CWA jurisdiction as a de-

fense; or (2) apply for a permit (on the grounds that no

permit is required) and, if the application is denied,

appeal the denial in court. But what happens if

Hawkes is, after all, granted a permit yet maintains it

never needed one in the first place? It must decline

the permit and challenge the original jurisdiction in

court. This roundabout process does not seem to be

an “adequate remedy” to the alternative of simply

allowing Hawkes to bring the jurisdictional challenge

in the first instance and to have an opportunity to show

the CWA does not apply to its land at all.

In my view, the Court in Sackett was concerned

with just how difficult and confusing it can be for a

landowner to predict whether or not his or her land

falls within CWA jurisdiction—a threshold determina-

tion that puts the administrative process in motion.

This is a unique aspect of the CWA; most laws do not

require the hiring of expert consultants to determine if

they even apply to you or your property. This juris-

dictional determination was precisely what the Court

deemed reviewable in Sackett. See Sackett, 132 S. Ct.

2la

at 1374-75 (Ginsburg, J., concurring). Accordingly, I

concur in the judgment of the court.

22a

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MINNESOTA

Civil No. 13-107 ADM/TNL

HAWKES Co., INC., PIERCE INVESTMENT CO., AND

LPF PROPERTIES, LLC, PLAINTIFFS

UNITED STATES ARMY CORPS OF ENGINEERS,

DEFENDANT

Aug. 1, 2013

MEMORANDUM OPINION AND ORDER

ANN D. MONTGOMERY, District Judge.

I. INTRODUCTION

On July 9, 2013, the undersigned United States

District Judge heard oral argument on Defendant

United States Army Corps of Engineers’ (the “Corps”)

Motion to Dismiss [Docket No. 11]. Plaintiffs

Hawkes Co., Inc. (“Hawkes”), Pierce Investment Co.

(“Pierce”), and LPF Properties, LLC (“LPF”) filed

this action seeking a declaratory judgment and injunc-

tive relief to challenge a jurisdictional determination

23a

made by the Corps under the Clean Water Act

(“CWA”). For the reasons stated herein, the Corps’

motion is granted.

Il. BACKGROUND

Plaintiffs Pierce and LPF own a 530 acre parcel of

land in Marshall County, Minnesota (the “Property”).

The Property contains peat, and because peat forms in

wetlands, the Property is necessarily considered a

wetland. Am. Compl. [Docket No. 7] 99 6, 7, 27.

Plaintiff Hawkes seeks permission to mine peat from

the Property for use in the construction of golf greens.

Hawkes is already mining peat from nearby land, and

intends to pay royalties to Pierce and LPF in exchange

for permission to expand its mining operation onto the

Property. All three companies are closely-held cor-

porations owned by members of the Pierce family, and

Kevin Pierce is an officer in all of the companies. /d.

19 8, 32-33.

On March 20, 2007, Kevin Pierce, representing

Hawkes, met with the Corps and the Minnesota De-

partment of Natural Resources (“MDNR”) to discuss

Hawkes’ plan to mine peat on the Property. On Jan-

uary 15, 2008, the parties met again. At this second

meeting, Hawkes informed the Corps and MDNR that

the high quality peat available on the Property could

support Hawkes’ mining operation for another 10 to 15

years. Id. 19 35-37.

24a

The CWA prohibits the discharge of materials into

“navigable waters,” which is broadly defined as “wa-

ters of the United States.” 33 U.S.C. §§ 1251(a),

1311(a), 1362(6). The Corps has interpreted the term

“waters of the United States” to include wetlands

adjacent to navigable waters. The Supreme Court

has affirmed this interpretation. See 33 C.F.R.

§ 328.3; United States v. Riverside Bayview Homes,

Inc., 474 U.S. 121, 139, 106 S. Ct. 455, 88 L. Ed. 2d 419

(1985). The Corps has authority under the CWA to

issue permits for the discharge of dredged or fill ma-

terials into navigable waters, including wetlands. See

33 U.S.C. § 1344. The Corps has also promulgated

regulations which govern its decisionmaking processes

in connection with CWA permits. See 33 C.F.R.

§ 320.1, et seq.

Hawkes’ intended mining operation involves the

filling or discharge of materials onto the Property.

As a result, in December 2010, Hawkes applied for a

permit from the Corps to begin mining. In January

2011, the parties met to discuss Plaintiffs’ plans. The

Corps attempted to dissuade Plaintiffs from expanding

their mining operations, in part by stressing the time

and cost involved in the permitting process. Am.

Compl. % 40.

On March 15, 2011, the Corps by letter informed

Hawkes it had tentatively determined that the Prop-

erty was connected to Red River of the North, a “wa-

ter of the United States,” and thus regulated by the

25a

Corps under the CWA. Over the next several

months, the parties met several times, and the Corps

conducted a site visit of the Property. In connection

with the permitting process, the Corps also requested

Plaintiffs conduct a series of assessments relating to

the Property, which Plaintiffs estimate will cost about

$100,000. Am. Compl. 11 41-46, Exs. A, B.

On November 8, 2011, the Corps sent Plaintiffs a

preliminary version of its jurisdictional determination

for the Property (sometimes referred to as the “JD”).

The preliminary JD stated that CWA jurisdiction ex-

isted over the Property because it was a wetland con-

nected to a “relatively permanent water,” which in

turn connected to the Red River of the North, a navi-

gable water.’ Plaintiffs responded by letter, arguing

' For jurisdiction to exist under the CWA, the wetland at issue

must have some connection to a “traditionally navigable water.”

The nature of this connection is somewhat in dispute due to Ra-

panos v. United States, 547 U.S. 715, 126 S. Ct. 2208, 165 L. Ed. 2d

159 (2006). In Rapanos, the four justice plurality opinion held

that for jurisdiction to exist under the CWA, the wetland must con-

nect to a traditionally navigable water by “relatively permanent,

standing or continuously flowing bodies of water.” Jd. at 739, 126

S. Ct. 2208. Justice Kennedy, in a concurring opinion, wrote that

jurisdiction exists if the wetland has a “significant nexus” to tradi-

tional navigable waters. /d. at 778, 126 S. Ct. 2208; see also Solid

Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Eng’rs, 531

U.S. 159, 121 S. Ct. 675, 148 L. Ed. 2d 576 (2001).

The Eighth Circuit Court of Appeals has held that either test

can establish CWA jurisdiction. United States v. Bailey, 571 F.3d

26a

no jurisdiction existed because the Property did not

connect to a “relatively permanent water.” Am.

Compl. 9 49.

On February 7, 2012, the Corps issued an Approved

Jurisdictional Determination (the “Approved JD”) in

which it apparently abandoned the “relatively perma-

nent water” rationale and instead concluded a “signif-

icant nexus” existed between the Property and the

Red River of the North. An “approved jurisdictional

determination” is the first formal decision the Corps

makes with regard to jurisdiction, and it is appealable

to a “Review Officer” within the agency. See 33

C.F.R. §§ 331.2, 331.3.

On April 4, 2012, in accordance with CWA regula-

tions, Plaintiffs appealed the Approved JD to the des-

ignated Corps Review Officer. Am. Compl.951. On

October 24, 2012, the Corps issued an appellate deci-

sion in which it rejected several of the Plaintiffs’ ap-

peal arguments. However, the appeal concluded that

the Corps had failed to evaluate the Property’s chemi-

cal, physical, and biological effects on the Red River of

the North, and thus had not established a significant

791, 799 (8th Cir. 2009). The Environmental Protection Agency

and the Corps have similarly issued informal guiding documents in

which they have stated an intent to exercise jurisdiction under both

tests. See U.S. Army Corps of Engineers, Clean Water Act Ju-

risdiction Following U.S. Supreme Court’s Decision in Rapanos

(Dec. 2, 2008), available at http://www.usace.army.mil/Portals/2/

docs/civilworks/regulatory/cwa_guide/ewa_juris 2dec08.pdf.

27a

nexus. As a result, the JD was remanded to the St.

Paul District of the Corps for further factfinding. Jd.

at Ex. C.

On December 31, 2012, the Corps issued a Revised

Approved Jurisdictional Determination (the “Revised

JD”) in which it again concluded CWA jurisdiction ex-

isted. Jd. at 1 54. The Corps informed Plaintiffs

that the Revised JD constituted the “final Corps ap-

proved jurisdictional decision,” meaning no further

appeals of jurisdiction could be taken. Cameron Decl.

[Docket No. 13] Ex. 1. On January 11, 2013, Plain-

tiffs filed this action seeking review of the Revised JD.

II. DISCUSSION

A. Motion to Dismiss Standard

Rule 12 of the Federal Rules of Civil Procedure

states that a party may move to dismiss a complaint

for failure to state a claim upon which relief can be

granted. Fed. R. Civ. P 12(b)(6). The court con-

strues the pleadings in the light most favorable to the

nonmoving party, and the facts alleged in the com-

plaint must be taken as true. Hamm v. Groose, 15

F.3d 110, 112 (8th Cir. 1994) (citation omitted). And

although the court may not consider matters outside

the pleadings at this stage, “documents necessarily

embraced by the complaint are not matters outside the

pleading[s].” Ashanti v. City of Golden Valley, 666

F.3d 1148, 1151 (8th Cir. 2012) (quotation omitted).

28a

B. Feview of Final Agency Actions

Under the Administrative Procedure Act (APA),

“agency action made reviewable by statute and final

agency action for which there is no other adequate

remedy in a court are subject to judicial review.” 5

U.S.C. § 704. For an agency action to be considered

“final,” it must satisfy two conditions. First, the

action must “mark the consummation of the agency’s

decisionmaking process,” meaning it must be more

than “tentative or interlocutory” in nature. Bennett

v. Spear, 520 U.S. 154, 177-78, 117 S. Ct. 1154, 137

L. Ed. 2d 281 (1997) (quotations and citations omitted).

Second, the action must be one “by which rights or

obligations have been determined,” or one from which

“legal consequences will flow.” Jd. at 178, 117 S. Ct.

1154.

The parties do not dispute that Plaintiffs here could

obtain judicial review by pursuing the permitting pro-

cess, as Corps regulations expressly make the final

permit decision reviewable under the APA. See 33

C.F.R. § 331.12. However, Plaintiffs argue that by it-

self, a jurisdictional determination qualifies as a “final

agency action” subject to immediate judicial review.

C. Judicial Review of Jurisdictional Determinations

Although no Eighth Circuit court has yet ruled on

the issue, several other federal courts have held that a

jurisdictional determination is not a “final agency

action,” and thus not subject to immediate judicial

29a

review. See, e.g., Fairbanks N. Star Borough v. U.S.

Army Corps of Eng’rs, 543 F.3d 586 (9th Cir. 2008);

Greater Gulfport Props., LLC v. U.S. Army Corps of

Eng’rs, 194 Fed. Appx. 250 (5th Cir. 2006) (un-

published); Coxco Realty, LLC v. U.S. Army Corps of

Eng’rs, Nu. 3:06-cv-416-s, 2008 WL 640946, at *4-5

(W.D. Ky. Mar. 4, 2008); Hampton Venture No. One v.

United States, 768 F Supp. 174, 175-76 (E.D. Va.

1991); St. Andrews Park, Inc. v. U.S. Dep’t of Army

Corps of Eng’rs, 314 F Supp. 2d 1238, 1244-45 (S.D.

Fla. 2004); Child v. United States, 851 F Supp. 1527,

1534-35 (D. Utah 1994); Lotz Realty Co. v. United

States, 757 F Supp. 692, 695-98 (E.D. Va. 1990); Ac-

quest Wehrle LLC v. United States, 567 F Supp. 2d

402, 409-411 (W.D.N.Y. 2008); Belle Co., LLC v. U.S.

Army Corps of Eng’rs, No. 12-247-BAJ-SCR, 2013 WL

773730, at *2-4 (M.D. La. Feb. 28, 2013).

Fairbanks illustrates the above-cited cases’ rea-

soning for denying judicial review of jurisdictional

determinations. Like Plaintiffs in this case, the plain-

tiff in Fairbanks sought judicial review after the Corps

issued an approved jurisdictional determination for the

wetlands at issue. Fairbanks, 543 F.3d at 593-94.

In deciding whether a jurisdictional determination is a

“final agency action,” the Ninth Circuit Court of Ap-

peals found that while the first Bennett condition was

satisfied, the second was not. The court also con-

cluded that the jurisdictional determination did not

impair the plaintiff’s ability to seek judicial review

30a

through the permitting process. See Bennett, 520

U.S. at 177-78, 117 S. Ct. 1154; 5 U.S.C. § 704.

Considering the first Bennett condition, the Ninth

Circuit held that the plaintiff’s jurisdictional determi-

nation represented a consummation of the Corps’ de-

cisionmaking process. The court reasoned that when

the Corps issues a jurisdictional determination and

upholds it on administrative appeal, the Corps itself

treats the determination as “final” and will not reopen

it absent new information supporting a revision.

Fairbanks, 543 F.3d at 592. The Ninth Circuit also

found that Corps regulations treat the jurisdictional

determination as a separate administrative process

from the subsequent permit decision, with the latter

being initiated at-will by the permit applicant. Prac-

tically speaking, when an applicant requests a permit,

his application does not reopen or otherwise disturb

the Corps’ earlier jurisdiction decision. Jd. at 593.

As a result, the Fairbanks court held that the jurisdic-

tional determination satisfied the first Bennett condi-

tion.

However, the Ninth Circuit ultimately held that a

jurisdictional determination was not a “final agency

action”—and thus not subject to immediate judicial

review—because it did not alter a party’s rights or

obligations. See id. at 591-94. A jurisdictional de-

termination, the court held, “does not itself command

[a party] to do or forbear anything; as a bare state-

ment of the agency’s opinion, it can be neither the

3la

subject of ‘immediate compliance’ nor of defiance.”

Id. at 591-92 (citation omitted). A finding of jurisdic-

tion in this context, the court held, is akin to recogniz-

ing already-existing facts about the nature of the wet-

lands at issue. When the Corps finds jurisdiction, it

“does not alter physical reality or the legal standards

used to assess that reality.” Jd. at 594. In other

words, the Corps’ jurisdictional determination clarifies

a plaintiff’s position but does not alter it. As a result,

the jurisdictional determination fails the second Ben-

nett condition, and the determination is not subject to

judicial review.

As part of its analysis, the Ninth Circuit briefly

noted its holding did not impair the plaintiff’s ability to

challenge CWA jurisdiction. /d. at 594-95. The

plaintiff could still challenge jurisdiction when judicial

review was appropriate, such as in connection with a

permit application or an enforcement proceeding.

See id. As aresult, the plaintiff was not without “oth-

er adequate remedy in a court.” See id.; 5 U.S.C.

§ 704.

D. Plaintiffs’ Appeal of the Revised Jurisdictional

Determination

As discussed below, Plaintiffs’ jurisdictional deter-

mination satisfies the first Bennett condition, but not

the second.

32a

1. Consummation of the Agency’s Decisionmaking

Process

The Corps argues Fairbanks reached the correct

end result, but disagrees with the Ninth Circuit’s con-

clusion that a jurisdictional determination marks the

consummation of the agency’s decisionmaking process.

Instead, the Corps urges the Court to view jurisdic-

tional determinations as the beginning, or at least as

some non-definitive, stage of the permit process. In

response, Plaintiffs note that Fairbanks, a case on

which the Corps relies, held that a jurisdictional de-

termination was the consummation of a Corps deci-

sionmaking process. Plaintiffs further argue the lan-

guage of Corps regulations themselves indicate an in-

tent to treat jurisdictional determinations as final.

Plaintiffs’ jurisdictional determination marked the

consummation of the Corps’ decisionmaking process,

and as such satisfies the first Bennett condition.

Despite the Corps’ argument to the contrary, the ju-

risdictional determination process is not—as this case

demonstrates—necessarily contiguous with a permit

application process. Here, Plaintiffs received the Re-

vised JD but have not yet decided whether to pursue a

permit. At this point, Plaintiffs could choose to aban-

don their mining operation. If that were to occur,

Plaintiffs would not have abandoned the administra-

tive process at a midpoint. The Corps’ jurisdictional

determination would remain in place regardless of

future operations, changes in ownership, or complete

33a

inactivity on the Property. The only ways in which

the Revised JD could be altered would be if: (1) new

information surfaced regarding the Property, or (2) a

party later successfully challenged jurisdiction in con-

nection with a permit application or enforcement ac-

tion. The jurisdictional determination is thus a dis-

crete decision.

The possibility of the Corps revising its jurisdic-

tional determination does not, as the Corps urges,

transform this determination into an advisory opinion.

The Ninth Circuit in Fairbanks concluded that the

possibility of new information arising did not suggest

that the determination “might be subject to subse-

quent revision consideration or modification.”

Fairbanks, 543 F.3d at 592 & n.4; see also Coxco, 2008

WL 640946, at *5 (holding jurisdictional determination

may mark consummation of jurisdiction decisionmak-

ing process). In other administrative and judicial

contexts, a final decision may be reopened if new in-

formation comes to light. See, e.g., Fed. R. Crim. P

33(b)(1) (governing motion for new trial based-on new-

ly discovered evidence); 20 C.F.R. § 404.989 (allowing

for reopening of otherwise final Social Security bene-

fits decisions based on new evidence or showing of er-

ror). But, for very practical and equitable reasons,

the chance of new information altering a final decision

does not justify treating the decision as entirely advi-

sory. That is also the case here.

34a

The language of Corps regulations further supports

this conclusion. The Corps concedes CWA regula-

tions describe a jurisdictional determination as “a

Corps final agency action.” 33 C.F.R. § 320.1(a)(6).

However, the Corps argues that this language does not

mean the Corps views jurisdictional determinations as

final for APA purposes, but rather only as “final” in

the sense the public may rely on the determina-

tion.’ See Final Rule for Regulatory Programs of the

Corps of Engr’s, 51 Fed. Reg. 41,206, 41,207 (Nov. 13,

1986). The Corps’ argument, as Plaintiffs note, actu-

ally supports viewing jurisdictional determinations as

the consummation of a decisionmaking process. Ifa

jurisdictional determination is “final” in the sense the

public may rely on it, the determination must be more

definitive than an advisory opinion.

2. Determines a Party’s Rights or Obligations

Although Plaintiffs’ Revised JD may mark the con-

summation of a Corps’ decisionmaking process, it does

not determine Plaintiffs’ rights or obligations, and thus

does not satisfy the second Bennett condition. Plain-

tiffs argue Bennett stressed the practical nature of its

articulated finality test, focusing on the legal conse-

quences of the agency decision even if the decision

itself did not expressly alter legal rights. See Ben-

® This argument also reflects the overall regulatory scheme, as 33

C.F.R. § 331.12 states administrative remedies have not been ex-

hausted for APA purposes until a final permit decision is reached

under § 331.10.

35a

nett, 520 U.S. at 169-70, 117 S. Ct. 1154. Because the

Corps has found jurisdiction, Plaintiffs argue, their

options have narrowed to a set of difficult alternatives.

Plaintiffs may proceed with mining and risk substan-

tial liability; they may seek a permit through a lengthy

and costly process; or they may abandon their mining

plans altogether. As a result, Plaintiffs argue the Re-

vised JD has materially altered their legal position.

The Corps responds by arguing, as Fairbanks held,

that jurisdictional determinations do not alter a party’s

legal obligations so much as mark the boundaries for

future decisions.

Plaintiffs’ jurisdictional determination does not fix

their rights or obligations. The Revised JD does not

order Plaintiffs to take any kind of action. Although

Plaintiffs may want to obtain a permit if they wish to

expand their mining operations, the Corps has in no

way obligated them to do so. See Fairbanks, 543

F.3d at 594; St. Andrews, 314 F Supp. 2d at 1244-45;

Belle, 2013 WL 1773730, at *4. While Plaintiffs do

have a difficult choice to make regarding how to pro-

ceed, their options did not substantially change be-

cause of the jurisdictional determination. The Prop-

erty is undisputedly a wetland, and it has a potential

connection to a navigable water. The Revised JD did

not change these physical characteristics. Nor did it

affect the legal standards used by agencies and courts

in determining where the CWA applies. Even if

Plaintiffs had never approached the Corps, Plaintiffs

would have still needed to decide whether to begin

36a

mining on a wetland possibly protected by the CWA or

to pursue a permit. As a result, the Revised JD does

not satisfy the second Bennett conditicn.

E. Compliance Orders and Sackett

Neither Plaintiffs nor the Court have identified a

single decision contrary tc the holding of Fairbanks

and the other cases cited above. However, Plaintiffs

argue the Supreme Court’s recent holding in Sackett v.

EPA, _ US. _, 182 S. Ct. 1367, 182 L. Ed. 2d 367

(2012), overruled these decisions.’ Without obtaining

a jurisdictional determination or permit, the petition-

ers in Sackett filled rocks and dirt onto part of their

residential lot in preparation for building a house. In

response, the EPA issued a compliance order in ac-

cordance with 33 U.S.C. § 1319.‘ In the compliance

order, the EPA determined that the petitioners’ prop-

erty fell under CWA jurisdiction, and also that the

* The Court in Belle, 2013 WL 773730, at *4, specifically distin-

guished Sackett, holding jurisdictional determinations did not have

the binding effect of compliance orders. Nevertheless, Plaintiffs

argue Belle reached the wrong result, and that Sackett applies

here.

* The EPA and the Corps have concurrent jurisdiction to enforce

the CWA. The EPA has the authority under the Act to issue com-

pliance orders, binding decisions which the EPA can then choose to

enforce in court by bringing an enforcement action. See 33 U.S.C.

§ 1319(a, b). Prior to Sackett, courts had held that a party subject

to a compliance order had no judicial recourse until the EPA

brought a civil action to enforce the order. See, e.g., Hoffman

Grp. v. EPA, 902 F.2d 567, 569-70 (7th Cir. 1990).

37a

petitioners had violated the Act. /d. at 1370-71. The

petitioners sought review of the compliance order,

arguing it was a “final agency action” under Chapter 7

of the APA and thus subject to judicial review.

The Supreme Court sided with the petitioners.

The Court held the compliance order bore the hall-

marks of a “final agency action” under the two Rennett

conditions. First, the compliance order marked the

consummation of the EPA’s decisionmaking process,

because the petitioners were not entitled to any fur-

ther administrative review. Jd. at 1372. Second, the

compliance order determined the petitioners’ rights

and obligations. The order legally obligated the

petitioners to “restore” their land in accordance with

an EPA restoration plan, it required them to provide

the EPA with access to the property, and it required

them to provide EPA employees with “access and

documentation related to the conditions of the site.”

Id. at 1371 (citation omitted). If the petitioners did

not comply, they would immediately risk aceruing

substantial, daily penalties. Jd. at 1372. In addition,

the Court noted that Corps regulations made it sub-

stantially more difficult for the petitioners to obtain a

permit after receiving a compliance order. /d. (citing

33 C.F.R. § 326.3(e)(1)(iv)).

1. Bennett Conditions Under Sackett

Plaintiffs argue the Revised JD satisfies the same

criteria for a “final agency action” as the compliance

order reviewed by the Supreme Court in Sackett. As

38a

a result, Plaintiffs argue the Court should extend

Sackett’s holding to apply to all final CWA jurisdic-

tional determinations as well. The Corps responds

that Fairbanks and the other above-cited cases have

correctly stated the law, and that because jurisdiction-

al determinations are distinguishable from compliance

orders, Sackett should have no effect here. Plaintiffs

are unable to demonstrate how Sackett applies to ju-

risdictional determinations.

As discussed above, the jurisdictional determination

satisfies the first Bennett condition. With regard to

the second Bennett condition, however, Plaintiffs’ Re-

vised JD is distinguishable from the petitioners’ com-

pliance order in Sackett. The compliance order de-

manded the petitioners restore their property in ac-

cordance with a restoration plan set by the EPA, and

grant the EPA access to both the land and records at

issue. Sackett, 132 8S. Ct. at 1371-72. If the petition-

ers chose to disobey the compliance order, they risked

accruing up to $75,000 per day in penalties, which the

EPA could recover if it subsequently prevailed in an

enforcement action. /d. at 1370.

° Regarding the first Bennett condition, Sackett and Fairbanks

actually adopt the same reasoning in concluding a compliance order

and a jurisdictional determination mark the consummations of their

respective decisionmaking processes. Sackett held the “mere pos-

sibility” of an agency revisiting and revising its original decision

based on new information does not “suffice to make an otherwise

final agency action nonfinal.” Sackett, 132 S. Ct. at 1372. As dis-

cussed above, Fairbanks held in agreement on this point.

39a

As discussed above in Section III.D.2., Plaintiffs

face no such obligations or changes in their rights as a

result of their jurisdictional determination. Plaintiffs

attempt to avoid this conclusion by arguing the threat

of liability comprises a material change in their legal

obligations, just as it did for the petitioners in Sackett.

See Sackett, 132 S. Ct. at 1371. If Plaintiffs forgo the

costly permit process and begin mining, they argue,

they will face the risk of the Corps suing them. How-

ever, the compliance order in Sackett “started the

clock” on the petitioners’ exposure to liability, adding

potentially tens of thousands of dollars per day in

penalties pending restoration of the property. See id.

In this case, the jurisdictional determination has not

exposed Plaintiffs to liability, nor made any demands

of them. And if an enforcement action was brought

against them, Plaintiffs would not face substantial—

and automatically accrued—liability for their ac-

tions. Thus, the “specter of potential liability” was

® At the hearing, Plaintiffs argued that proceeding without a per-

mit when the Corps has already determined jurisdiction could put

Plaintiffs at risk of steeper penalties and even criminal liability if

the Corps succeeded in an enforcement action, because violating

the CWA after gaining knowledge of CWA jurisdiction could dem-

onstrate Plaintiffs’ bad faith. Whether a particular agency action

may be used as evidence rgainst a party in a subsequent proceed-

ing does not amount to a change in that party’s rights or obliga-

tions, nor is it fairly characterized as a legal consequence. See

Fairbanks, 543 F.3d at 595 (“[TJhe possibility that Fairbanks might

someday face a greater risk of increased fines should it proceed

without regard to the Corps’ assertion of jurisdiction does not

40a

much more concrete for the petitioners in Sackett than

it is here. Pls.” Mem. Opp. [Docket No. 26] 23; see

Lotz, 757 F Supp. at 696 (holding the permitting pro-

cess did not impose the sort of “immediate and devas-

tating consequences” which might amount to a deter-

mination of rights or obligations).

Also unlike the petitioners in Sackett, Plaintiffs may

pursue a permit without a disadvantage. The com-

pliance order “severely” limited the petitioners’ ability

to obtain a permit from the Corps. Sackett, 132 S. Ct.

at 1372. Here, the jurisdictional determination has

not affected Plaintiffs’ ability to pursue a permit.

And Plaintiffs’ description of the permit process as an

unending, unreasonably expensive procedural night-

mare is unpersuasive. Undoubtedly, pursuing a per-

mit comes at a significant price, and it will take time

before Plaintiffs may challenge the Revised JD

through this process. But, as another court held in a

relevant context, “[t]he possibility that an agency may

make an error that is beyond the effective reach of a

court is part of the price we pay for the advantages of

an administrative process.” Thermal Ecology Must

be Preserved v. Atomic Energy Comm’n, 433 F.2d 524,

526 (D.C. Cir. 1970). Although Plaintiffs might prefer

a faster or less expensive way to challenge the Revised

JD, the law views the permitting process as a proper

procedural juncture to access judicial review in con-

constitute a legal consequence of the approved jurisdictional de-

termination.”) (emphasis original).

4la

nection with the CWA. See, e.g., Fairbanks, 543 F.3d

at 594-95.

2. Adequacy of Judicial Remedies

In addition to considering the Bennett conditions,

Sackett also considered whether the petitioners were

left without “other adequate remedy in a court.” /d.

at 1372 (quoting 5 U.S.C. § 704). Generally, the party

seeking to alter wetlands subject to the CWA may

seek judicial review by one of two methods. First, he

may proceed with the planned development or other

alteration without consulting the Corps or the EPA.

The EPA may then choose to bring an enforcement

action against him, which would bring the party into

court. See 33 U.S.C. § 1319; 33 C.F.R. §§ 326.3, 326.5.

The Court in Sackett rejected this option, holding that

waiting to be sued while incurring potentially signifi-

cant penalties was not a sufficient remedy. See gen-

erally Sackett, 132 S. Ct. at 1372-74.

Second, the party may apply for a permit from the

Corps, and if the permit is denied through the admin-

istrative process, he may file suit. See 33 C.F.R.

§§ 331.10, 331.12. The Supreme Court held that this

was not an adequate remedy for the petitioners in

Sackett, because the EPA, a separate agency, had

already issued a compliance order. /d. at 1372 (“The

remedy for denial of action that might be sought from

one agency does not ordinarily provide an ‘adequate

remedy’ for action already taken by another agency.”).

42a

Neither of these “dead ends” apply to Plaintiffs.

First, unlike the petitioners in Sackett, Plaintiffs are

not at the mercy of the Corps while they continue to

accrue liability. On the contrary, Plaintiffs may

choose if future administrative proceedings regarding

the Property will occur and Plaintiffs will not accrue

liability in the meantime. Unlike the petitioners,

Plaintiffs have the ability to “initiate [the] process”

which will bring them before the Court. See Sackett,

132 S. Ct. at 1372.

Regarding the second remedy, as noted, Plaintiffs

have the unhindered option of pursuing a permit from

the Corps. Both Sackett and Fairbanks viewed the

permit process as a proper avenue after which judicial

review of agency action under the CWA was appropri-

ate. See Sackett, 132 S. Ct. at 1872; Fairbanks, 543

F.3d at 594-95; see also Coxco, 2008 WL 640946, at *5.

Sackett found the permit process inadequate only be-

cause it would not serve to remedy the compliance or-

der already issued by the EPA, a separate agency.

Sackett, 132 S. Ct. at 1372. In this case, Plaintiffs

face no such dilemma.

Finally, Plaintiffs now have a third avenue to judi-

cial review. If Plaintiffs choose to begin mining with-

out a permit and the government issves a compliance

order, Plaintiffs may, as a result of Sackett’s holding,

seek immediate judicial review of the compliance order

and resolve the status of their operations. Because

the Revised JD does not satisfy both Bennett condi-

43a

tions, and because Plaintiffs have “other adequate

remedy in a court,” the determination is not reviewa-

ble at this time.

F. Ripeness

Both parties offer brief arguments regarding why

the doctrine of ripeness might also determine the out-

come of this motion. Because the Court holds judicial

review is not appropriate for the reasons stated above,

it declines to reach the issue of ripeness.

IV CONCLUSION

Based on the foregoing, and all the files, records

and proceedings herein, IT IS HEREBY ORDERED

that:

1. Defendant’s Motion to Dismiss [Docket No. 11]

is GRANTED; and,

2. All claims in the Amended Complaint [Docket

No. 7] are DISMISSED.

LET JUDGMENT BE ENTERED ACCORDINGLY

44a

APPENDIX C

{SEAL OMITTED]

DEPARTMENT OF THE ARMY

ST. PAUL DISTRICT, CORPS OF ENGINEERS

180 FIFTH STREET EAST, SUITE 700

ST. PAUL MN 55101-1678

REPLY TO ATTENTION OF

Operations

Regulatory (2007-01914-DJS) Dec. 31, 2012

Mr. Kevin Pierce

Hawkes Peat Company

P.O. Box 14111

Grand Forks, North Dakota 58208

Dear Mr. Pierce:

The U.S. Army Corps of Engineers, St. Paul Dis-

trict (District) has completed our reevaluation of the

approved jurisdictional determination (AJD) issued to

you on February 7, 2012 in accordance with the appeal

decision provided by the Mississippi Valley Division

Commander on October 24, 2012. As you are aware,

the Division Commander remanded the case back to

the District for reconsideration and reevaluation of our

determination that the wetlands on your property

along with other similarly situated wetlands adjacent

to the tributary have a significant effect on the chemi-

45a

cal, biological, and physical integrity of the Red River

of the North. Based on our reevaluation, we have

affirmed our previous determination that the wetlands

on your property have a significant nexus with the Red

River of the North and are thus waters of the United

States. A copy of the revised AJD is provided for

your records.

The District Engineer’s decision made pursuant to

the Division Engineer’s remand of the appealed action

becomes the final Corps permit decision in accordance

with 33 C.F.R. 331.10.

If you have any questions, contact Dan Seemon in

our St. Paul office at (651) 290-5380. In any corre-

spondence or inquiries, please refer to the Regulatory

number shown above.

Sincerely,

/s/ KELLY (ILLEGIBLE|

[for] TAMARA E. CAMERON

Chief, Regulatory Branch

Copy furnished:

T. Acuff, CEMVD-PD-KM

46a

EXECUTIVE SUMMARY

MVP RESPONSE TO REMAND OF APPROVED

JURISDICTIONAL DETERMINATION, CORPS

FILE NUMBER MVP-2007-01914-DJS

(HAWKES PEAT COMPANY, INC.)

BACKGROUND

Mr. Kevin Pierce appealed the approved jurisdictional

determination (AJD) prepared by the St. Paul District

Regulatory Branch (District). Mr. Pierce alleged

that a significant nexus does not exist between the 155

acres of wetlands on his property and the Red River of

the North.

On October 24, 2012 the Division Commander issued a

decision on the appeal and remanded the case back to

the District for reconsideration. The remand direc-

ted the District to review the administrative record

and its decision that the wetlands on Mr. Pierce’s pro-

perty along with other similarly situated wetlands ad-

jacent to the tributary has a significant effect on the

chemical, physical, and biological integrity of the Red

River of the North. chemical, physical, or biological

integrity of the Red River of the North.

ACTION REQUIRED

OP-R staff has completed the additional analyses and

reviews in accordance with the remand and has deter-

mined that the wetlands located on Mr. Pierce’s prop-

erty have a significant effect on the chemical, physical,

and biological integrity of the Red River of the North.

47a

A revised and updated AJD has been prepared and will

be transmitted to Mr. Pierce. A copy of the trans-

mittal letter and the revised AJD will be provided to

CEMVDPD-KM (Tonya Acuff) in accordance with the

instructions from the Division Commander.

Pursuant to our regulations, the final Corps decision is

the District Engineer’s decision made pursuant to the

Division Engineer’s remand of the appealed action.

48a

APPROVED JURISDICTIONAL

DETERMINATION FORM

U.S. Army Corps of Engineers

This form should be completed by following the in-

structions provided in Section IV of the JD Form

Instructional Guidebook.

SECTION I;_ BACKGROUND INFORMATION

REPORT COMPLETION DATE FOR APPROVED

JURISDICTIONAL DETERMINATION (JD):

ST PAUL, MN DISTRICT OFFICE, FILE NAME,

AND NUMBER: 2007-01914-DJS, Hawkes Peat,

Mercil Site

PROJECT LOCATION AND BACKGROUND IN-

FORMATION:

State: Minnesota

County/parish/borough: Marshall

City: Newfolden

Center coordinates of site (lat/long in degree

decimal format): Lat. 48.417373° N, Long.

-96.272519° W

Universal Transverse Mercator: Zone 16

Name of nearest waterbody: Unnamed tributary

to the Middle River

49a

Name of nearest Traditional Navigable Water

(TNW) into which the aquatic resource flows:

Red River of the North

Name of watershed or Hydrologic Unit Code

(HUC): 09020309

[X) Check if map/diagram of review area and/or

potential jurisdictional areas is/are available

upon request.

[_] Check if other sites (e.g., offsite mitigation

sites, disposal sites, etc...) are associated with

this action and are recorded on a different JD

form.

D. REVIEW PERFORMED FOR SITE EVALUATION

(CHECK ALL THAT APPLY):

{ij Office (Desk) Determination. Date:

12/20/2011

{<] Field Determination. Date(s): 6/1/2011 &

12/1/2011

SECTION I; SUMMARY OF FINDINGS

A. RHA SECTION 10 DETERMINATION OF JURIS-

DICTION.

There Are no “navigable waters of the U.S.” within

Rivers and Harbors Act (RHA) jurisdiction (as defined

by 33 CFR part 329) in the review area. [Required]

[_] Waters subject to the ebb and flow of the

tide.

50a

[_] Waters are presently used, or have been used

in the past, or may be susceptible for use to

transport interstate or foreign commerce.

Explain:

B. CWA SECTION 404 DETERMINATION OF JU-

RISDICTION.

There Are “waters of the U.S.” within Clean Water Act

(CWA) jurisdiction (as defined by 33 CFR part 328) in

the review area. [Required]

1. Waters of the U.S.

a. Indicate presence of waters of U.S. in review

area (check all that apply):'

TNWs, including territorial seas

Wetlands adjacent to TNWs

Relatively permanent waters’ (RPWs)

that flow directly or indirectly into

TNWs

Non-RPWs that flow directly or indi-

rectly into TNWs

("] Wetlands directly abutting RPWs that

flow directly or indirectly into TNWs

Oo OOO

' Boxes checked below shall be supported by completing the

appropriate sections in Section III below.

* For purposes of this form, an RPW is defined as a tributary

that is not a TNW and that typically flows year-round or has con-

tinuous flow at least “seasonally” (e.g., typically 3 months).

5la

Wetlands adjacent to but not directly

abutting RPWs that flow directly or in-

directly into TNWs

Wetlands adjacent to non-RPWs that

flow directly or indirectly into TNWs

Impoundments of jurisdictional waters

Isolated (interstate or intrastate) wa-

ters, including isolated wetlands

OO WwW Oo

b. Identity (estimate) size of waters of the U.S.

in the review area:

Non-wetland waters: linear feet: width

(ft) and/or acres. Wetlands: 155 acres.

c. Limits (boundaries) of jurisdiction based on:

Not established at this time. Elevation of

established OHWM (if known):

2. Non-regulated waters/wetlands (check if appli-

cable):*

[_] Potentially jurisdictional waters and/or

wetlands were assessed within the re-

view area and determined to be not ju-

risdictional. Explain:

* Supporting documentation is presented in Section III.F

52a

SECTION Ill; CWA ANALYSIS

A. TNWs AND WETLANDS ADJACENT TO TNWs

The agencies will assert jurisdiction over TNWs and

wetlands adjacent to TNWs. If the aquatic re-

source is a TNW, complete Section III.A.1 and Sec-

tion III.D.1 only; if the aquatic resource is a wet-

land adjacent to a TNW, complete Sections III.A.1

and 2 and Section III.D.1.; otherwise, see Section

III.B below.

1. TNW

Identify TNW:

Summarize rationale supporting determina-

tion:

2. Wetland adjacent to TNW

Summarize rationale supporting conclusion

that wetland is “adjacent”:

B. CHARACTERISTICS OF TRIBUTARY (THAT IS

NOT A TNW) AND ITS ADJACENT WETLANDS

(IF ANY):

This section summarizes information regarding

characteristics of the tributary and its adjacent

wetlands, if any, and it helps determine whether or

not the standards for jurisdiction established under

Rapanos have been met.

The agencies will assert jurisdiction over non- nav-

igable tributaries of TNWs where the tributaries are

“relatively permanent waters” (RPWs), i.e. tribu-

53a

taries that typically flow year-round or have con-

tinuous flow at least seasonally (e.g., typically 3

months). A wetland that directly abuts an RPW is

also jurisdictional. If the aquatic resource is not a

TNW, but has year-round (perennial) flow, skip to

Section III.D.2. If the aquatic resource is a wet-

land directly abutting a tributary with perennial

flow, skip to Section III.D.4.

A wetland that is adjacent to but that does not

directly abut an RPW requires a significant nexus

evaluation. Corps districts and EPA regions will

include in the record any available information that

documents the existence of a significant nexus be-

tween a relatively permanent tributary that is not

perennial (and its aijacent wetlands if any) and a

traditional navigable water, even though a signifi-

cant nexus finding is not required as a matter of

law.

If the waterbody‘ is not an RPW, or a wetland

directly abutting an RPW, a JD will require addi-

tional data to determine if the waterbody has a sig-

nificant nexus with a TNW. If the tributary has

adjacent wetlands, the significant nexus evaluation

must consider the tributary in combination with all

of its adjacent wetlands. This significant nexus

* Note that the Instructional Guidebook contains additional in-

formation regarding swales, ditches, washes, and erosional features

generally and in the arid West.

54a

evaluation that combines, for analytical purposes,

the tributary and all of its adjacent wetlands is used

whether the review area identified in the JD request

is the tributary, or its adjacent wetlands, or both.

If the JD covers a tributary with adjacent wetlands,

complete Section III.B.1 for the tributary, Section

III.B.2 for any onsite wetlands, and Section III.B.3

for all wetlands adjacent to that tributary, both on-

site and offsite. The determination whether a sig-

nificant nexus exists is determined in Section III.C

below.

1. Characteristics of non-TNWs that flow directly

or indirectly into TNW

(i) General Area Conditions:

Watershed size: 785 square miles

Drainage area: 2.4 square miles

Average annual rainfall: 21.2 inches

Average annual snowfall: 46.7 inches

(ii) Physical Characteristics:

(a) Relationship with TNW:

[_] Tributary flows directly into TNW.

(X] Tributary flows through 2 tribu-

taries before entering TNW

Project waters are 30 (or more)

river miles from TNW.

55a

Project waters are 1 (or less) river

miles from RPW.

Project waters are 30 (or more)

aerial (straight) miles from TNW

Project waters are 1 (or less) aerial

(straight) miles from RPW.

Project waters cross or serve as

state boundaries. Explain:

Identify flow route to TNW°: The

wetlands in the review area dis-

charge to a man-made _ non-

jurisdictional drainage feature that

flows approximately 512 feet to an

unnamed tributary to the Middle

River. The tributary then flows

to the Middle River a perennial

tributary of the Red River, a nav-

igable water of the U.S. (TNW).

Tributary stream order, if known:

1st.

(b) General Tributary Characteristics

check all th ly):

Tributary is: [X] Natural

° Flow route can be described by identifying, e.g., tributary a,

which flows through the review area, to flow into tributary b, which

then flows into TNW.

56a

(] Artificial

(man-made).

Explain:

[_] Manipulated

(man-altered).

Explain:

Tributary properties with respect to

top of bank (estimate):

Average width: 10 feet

Average depth: 3 feet

Average side slopes: 2:1.

Primary tributary substrate composi-

tion (check all that apply):

L] Silts [Xx] Sands [ ] Con-

X] Cobbles [XJ] Gravel crete

[_] Bedrock [X] Vegetation. LJ Muck

Type/% cover:

LJ Other. non-vegetated

Tributary condition/stability [e.g.,

highly eroding, sloughing banks].

Explain: Natural erosion.

Presence of run/riffle/pool complexes.

Explain: Flow in the channel was not

57a

observed during the December 1, 2011

site visit. The District was not able to

determine if riffle/pool complexes were

present in the tributary.

Tributary geometry: Meandering

Tributary gradient (approximate av-

erage slope): 1%

Tributary provides for: Seasonal flow

Estimate average number of flow

events in review area/year: Pick List

Describe flow regime: The District has character-

ized the flow in the stream as seasonal based on the

average annual snowfall, indicators of an ordinary high

water mark and scour in the channel, indicators of

groundwater discharge into the channel, and an analy-

sis of the drainage area using the District’s seasonal

stream evaluation protocol. Average annual snowfall

at the site is 46.7 inches. In normal years the major-

ity of this snow melts and is drained from the land-

scape through surface tributaries eventually finding its

way to the Red River of the North. In normal years,

the snowpack in combination with precipitation results

in continuous flow from mid-to late March through

June. The frequency and duration of flow in the un-

named tributary is sufficient to create an ordinary

high water mark. District staff observed a clear na-

tural line impressed on the bank, shelving, and sedi-

58a

ment sorting in the channel. During a site investiga-

tion on December 1, 2011 no surface flow in the chan-

nel was observed but pools were observed sporadically

throughout its length. These observations were made

in the midst of a severe drought in this portion of

Minnesota. No precipitation was recorded during the

three days leading up to the site investigation and the

only precipitation recorded in the 14 days preceding

the investigation was 0.04 inches on November 27th.

Persistent pools in the channel under these conditions

are an indication of groundwater contributions to flow

in the channel. To further evaluate flow in the tribu-

tary the District utilized its seasonal stream evaluation

protocol. The protocol is based on the results of mon-

itoring conducted on hundreds of first and second or-

der channels throughout Minnesota and Wisconsin.

In general, the St. Paul District’s observations have

identified that tributaries that have drainage areas in

excess of one square mile typically meet the agency’s

definition of seasonal flow (continuous flow for at least

three months). The drainage area for the unnamed

tributary was determined to be 2.4 square miles or al-

most 2.5 times the threshold identified during the Dis-

trict’s assessment of flow duration on first and second

order tributaries. Given this information the District

has charaterized the flow in the tributary as seasonal

with continuous flow between ice out and mid-June.

Stream flow may be present at other time and may

also persist longer in years with normal precipitation if

59a

groundwater discharge is supplying flow to the tribu-

tary.

Other information on duration and volume: The

owner of the property where the tributary is located

has provided conflicting information regarding the

duration of flow in the tributary. In an oral state-

ment to Corps staff on December 1, 2011 he indicated

that flow is present in the channel from ice out until

mid June. In a written statement to Mr. Brian Ross

of Widseth Smith Nolting he states that there is only

flow in the tributary for 2.5 weeks and after large rain

events. In light of these discrepancies the Corps has

chosen not to rely on these statements for this JD.

Surface flow is: Discrete and confined. Charac-

teristics:

Subsurface flow: Unknown. Explain findings:

Pools in channel in December more than 48 hours after

a precipitation event during drought conditions indi-

cate groundwater discharge into the tributary.

[-] Dye (or other) test performed:

Tributary has (check all that apply):

(<] Bed and banks

(<X] OHWM*® (check all indicators that apply)

* A natural or man-made discontinuity in the OHWM does not

necessarily sever jurisdiction (e.g., where the stream temporarily

flows underground, or where the OHWM has been removed by

60a

[X] clear, natural line impressed on the bank

[_] the presence of litter and debris

{X] changes in the character of soil

[_] destruction of terrestrial vegetation

XX] shelving

[_] the presence of wrack line

[_] vegetation matted down, bent, or absent

sediment sorting

leaf litter disturbed or washed away

scour

sediment deposition

multiple observed or predicted flow events

water staining

WOOUOUWW

abrupt change in plant community

(_] other (list):

[_] Discontinuous OHWM.” Explain:

development or agricultural practices). Where there is a break in

the OHWM that is unrelated to the waterbody’s flow regime (e.g.,

flow over a rock outcrop or thr..ugh a culvert), the agencies will

look for indicators of flow above and below the break.

" Tbid.

6la

If factors other than the OHWM were used to de-

termine lateral extent of CWA jurisdiction (check

all that apply):

[| High Tide Line indicated by:

[_] oil or scum line along shore objects

[_] fine shell or debris deposits (foreshore)

[_] physical markings/characteristics

[_] tidal gauges

[] other (list):

[_} Mean High Water Mark indicated by:

[_] survey to available datum;

[_] physical markings;

[_] vegetation lines/changes in vegetation

types.

(iii) Chemical Characteristics:

Characterize tributary (e.g., water color is

clear, discolored, oily film; water quality;

general watershed characteristics, etc.).

Explain: There is no quantitiatve wa-

ter data for the tributary. Based on

general watershed characteristics (pre-

dominantly comprised of open space

with limited agricultural usage (row

crops and hay) and residential dwell-

ings) there should be no impairments in

62a

the tributary. Further, the amount of

impervious surface in the drainage area

for the tributary is less than 10% which

is under the recognized threshold above

which adverse effects to water quality

are seen as a result of urbanization.

Identify specific pollutants, if known:

none known.

(iv) Biological Characteristics. Channel sup-

ports (check all that apply):

(<] Riparian corridor. Characteristics (type,

average width): The tributary is buffered by a

forested (deciduous) riparian corridor from its up-

stream origin downstream to the terminus at the

Middle River. The riparian corridor increases in

width moving from upstream to downstream along

the tributary. The widths range from 5 feet (each

side of the tributary) to approximately 300 feet

(each side) near its confluence with the Middle

River.

Wetland fringe. Characteristics:

Habitat for:

Federally Listed species. Explain find-

ings:

Fish/spawn areas. Explain findings:

OO OOO

Other environmentally-sensitive species.

Explain findings:

63a

(X] Aquatic/wildlife diversity. Explain find-

ings: The tributary could serve as a movement cor-

ridor between the Middle River and the wetland and

upland habitats adjacent to it. Amphibians, reptiles,

and mammals all utilize stream channels as migration

routes and various species of each are known to inhabit

this portion of Minnesota.

2. Characteristics of wetlands adjacent to non-

TNW that flow directly or indirectly into TNW

(i) Physical Characteristics:

(a) General Wetland Characteristics:

Properties:

Wetland size: The wetlands in the

review area total 145 acres

Wetland type. Explain: Accord-

ing to the National Wetland Inventory the wet-

lands in the review area consist of 133 acres of pal-

ustrine emergent/scrub shrub, broad-leaved de-

ciduous, saturated, organic soil (PEM/SS1Bg) and

12 acres of Palustrine scrub shrub, broad- leaved

deciduous, saturated, organic soil (PSS1B). The

vegetative communities at the site were also

mapped as part of the Minnesota Department of

Natural Resources, Minnesota County Biological

Survey (MCBS). The MCBS effort identified

four wetland plant community types in the review

area: rich fen, aspen forest, tamarack swamp,

and willow swamp. In June 2011, Corps staff

64a

completed a reconnaissance inspection of the wet-

lands in the review area to, among other things,

conduct spot checks of the MCBS plant community

type mapping. This investigation revealed that

the rich fen is composed of the sedge subtype and

the shrubby subtype, that the willow swamp was

accurately mapped, and that the tamarack swamp

mapped on the eastern portion of the site is really

a hardwood swamp dominated by quaking aspen.

Wetland quality. Explain: The

Mercil wetland complex (review area) is consid-

ered a Rich Fen (Minerotrophic) by the Minnesota

Department of Natural Resources, with high veg-

etative biodiversity. During the June 2011 site

inspection District staff noted observed that the

wetlands within the review area had escaped sig-

nificant alteration by activities such as grazing,

cultivation and logging. As a result, the site ap-

pears to exist in a pre-European settlement condi-

tion and is correctly given an outstanding state-

wide biodiversity significance ranking by the

MCBS. The exceptional quality of the wetlands

in the review area is further enhanced by the high

quality of the surrounding upland buffers and the

unfragmented landscape of wetlands and uplands

that represent one of the best examples of ridge

and swale communities in Marshall County and

northwestern Minnesota. A quantitative site-

specific functional assessment has not been per-

formed for the wetlands in the review area.

65a

However, District staff who are familiar with ap-

plication of the Minnesota Routine Assessment

Methodology (MnRAM) for evaluating wetland

functional assessment have qualitatively assessed

the suite of functions addressed by MnRAM and

concluded that given the reference standard qual-

ity of the site they would expect it to rate high or

exceptional for the full suite of functions. These

include: vegetative diversity/integrity, mainte-

nance of characteristic hydrology, flood attenua-

tion, downstream water quality, wetland water

quality, characteristic wildlife habitat structure,

and maintenance of characteristic amphibian hab-

itat.

Project wetlands cross or serve as

state boundaries. Explain:

(b) General Flow Relationship with Non-

TNW:

Flow is: Intermittent flow. Explain:

Surface flows from the wetlands in the review area

move south from 120th Avenue into the MNDNR

Wildlife Management area and then into the man made

drainage feature that discharges into the unnamed

tributary. Flow from the wetlands to the south un-

derneath the road were observed during a site visit on

June 1, 2011. Surface flows occur in response to

snowmelt and precipitation with continuous discharges

present between March and June and more intermit-

tent discharges occurring after significant precipita-

66a

tion events in other portions of the year. Peak dis-

charges from the wetlands occur in the spring as a

result of combined snowmelt and precipitation. This

flow regime is best described as seasonal and inter-

mittent.

Surface flowis: Pick List

Characteristics: At times during the

year surface flow through the wetland can be de-

scribed as overland sheet flow (March through June).

Outside of this period, surface flows may be more con-

fined to small channels that collect groundwater and

precipitation and carry it south towards the unnamed

tributary. The surface flow characteristics are best

described as seasonal and intermittent.

Subsurface flow: Unknown. Explain

findings: There has been no formal investigation of

the subsurface flow from the wetlands. Evidence of

groundwater discharge was observed in the tributary

but the source of the groundwater or the contribution

from the wetland has not been determined.

[_] Dye (or other) test performed:

Non-TNW:

[_] Directly abutting

X] Not directly abutting

67a

(<] Discrete wetland hydrologic con-

nection. Explain: The review area creates an artifi-

cial boundary within a large continuous wetland that

extends south towards the unnamed tributary and

Middle River (see Figures 1 and 3). The wetland is

also divided by 110th Ave NW but water flows freely

between the road through 2-24 inch culverts (the cul-

verts are located approximately 50 yards apart).

Surface water was observed at similar elevations on

both sides of the road during the June 2011 site visit.

Along the southern edge of this wetland an east-west

oriented drainage feature was excavated to intercept

surface flows from the wetland and direct them to the

east. This drainage feature was constructed in wet-

lands and is still considered to meet the wetland crite-

ria in the Corps 87 manual and applicable regional

supplement. This wetland drainage feature connects

with a man-made drainage feature excavated through

uplands that directs flows from the wetland to the

southeast. This drainage feature did not have a con-

tinuous ordinary high water mark and, therefore, is

not considered to be a tributary. The man-made

drainage feature carries water approximately 512 feet

to the southeast where it discharges into the unnamed

tributary and ultimately the Middle and Red Rivers.

Thus, the wetlands in the review area are part of a

large wetland covering several hundred acres that is

adjacent to the unnamed tributary via a discrete sur-

face hydrologic connection.

68a

[-] Ecological connection. Explain:

[_] Separated by _ berm/barrier.

Explain:

(d) Proximity (Relationship) to TNW

Project wetlands are 30 (or more) river

miles from TNW

Project waters are 30 (or more) aerial

(straight) miles from TNW

Flow is from: Wetland to navigable wa-

ters.

Estimate approximate location of wetland

as within the Pick List floodplain.

(ii) Chemical Characteristics:

Characterize wetland system (e.g., water

color is clear, brown, oil film on sur-

face; water quality; general watershed

characteristics; etc.). Explain: The

chemical characteristics of the wet-

lands in the review area was not di-

rectly assessed and visual! inspections

of the water in the wetland provided no

obvious indications of water quality im-

pairments (surface water in the wet-

land appeared clear). However the

wetland is categorized as a rich fen

which indicates that pH levels are near

neutral but nutrient poor. As dis-

69a

cussed in the tributary section of this

JD, the surrounding landscape is pri-

marily undisturbed open space which

typically results in good water quality.

Identify specific pollutants, if known:

None known.

(iii) Biological Characteristics. Wetland sup-

ports (check all that apply):

[] Riparian buffer. Characteristics

(type, average width):

XJ Vegetation type/percent cover. Ex-

plain: 90% rich fen consisting of a very diverse

sedge dominated herbaceous litter and 10% aspen

parkland consisting of quaking aspen, dogwood

and a sedge dominated understory.

[] Habitat for:

[] Federally Listed species.

Explain findings:

{_] Fish/spawn areas. Explain

findings:

[.] Other environmentally-sensitive

species. Explain findings:

(X] Aquatic/wildlife diversity. Ex-

plain findings: The wetlands in the review area are

high quality and are used by amphibians, reptiles,

mammals, and birds. The expansive size of the wet-

70a

lands and its pre-European settlement condition make

it a valuable resource in the agricultural dominated

lanscape of western Minnesota.

3. Characteristics of all wetlands adjacent to the

tributary (if any)

All wetland(s) being considered in the cumula-

tive analysis: Pick List

Approximately (591) acres in total are being

considered in the cumulative analysis.

For each wetland, specify the following:

abuts? (inacres) abuts? (in acres)

(Y/N) (Y/N)

see discussion below

Summarize overall biological, chemical and

physical functions being performed: The Dis-

trict has determined, based on the National

Wetland Inventory, that there are 591 acres of

wetlands adjacent to the relevant reach, in-

cluding those within the review area (see Fig-

ure 3). While this approach likely underesti-

mates the area of wetlands, a wetland delinea-

tion of the wetlands adjacent to the tributary

and outside of the review area is not practical

for this determination. The 591 acres are one

continuous wetland that extends from the nor-

7la

thern boundary of the drainage area of the rel-

evant reach south towards the unnamed tribu-

tary (the wetland does not abut the unnamed

tributary). Within this one wetland the NWI

identifies six separate wetland types:

Palustrine emergent/scrub shrub, broad-leaved

deciduous, saturated, organic soil 328.4 acres

Palustrine scrub shrub, broad-leaved deciduous/

emergent, saturated, organic soil 168.3 acres

Palustrine scrub shrub, broad-leaved deciduous/

forested needle-leaved deciduous, saturated,

organic soil 51.8 acres

Palustrine scrub shrub, broad-leaved deciduous,

saturated 3.5 acres

Palustrine scrub shrub, broad-leaved deciduous,

saturated, organic soil 38.7 acres

Palustrine unconsolidated bottom, intermittently

exposed, excavated 0.4 acre

As discussed in the preceding section of the JD

(addressing wetlands in the review area), the

entire drainage area and the wetlands within it

that are adjacent to the unnamed tributary ex-

ist in a mostly undisturbed pre-European set-

tlement condition. In light of this, District

staff has qualitatively assessed the functions

these wetlands provide and concluded that the

wetlands outside of the review area would also

72a

score exceptional or high for the suite of func-

tions previously identified.

C. SIGNIFICANT NEXUS DETERMINATION

A significant nexus analysis will assess the flow

characteristics and functions of the tributary itself

and the functions performed by any wetlands adja-

cent to the tributary to determine if they signifi-

cantly affect the chemical, physical, and biological

integrity of a TNW. For each of the following sit-

uations, a significant nexus exists if the tributary,

in combination with all of its adjacent wetlands,

has more than a speculative or insubstantial effect

on the chemical, physical and/or biological integrity

of a TNW. Considerations when evaluating sig-

nificant nexus include, but are not limited to the

volume, duration, and frequency of the flow of wa-

ter in the tributary and its proximity to a TNW, and

the functions performed by the tributary and all its

adjacent wetlands. It is not appropriate to deter-

mine significant nexus based solely on any specific

threshold of distance (e.g. between a tributary and

its adjacent wetland or between a tributary and the

TNW). Similarly, the fact an adjacent wetland lies

within or outside of a floodplain is not solely de-

terminative of significant nexus.

Draw connections between the features documented

and the effects on the TNW, as identified in the Ra-

panos Guidance and discussed in the Instructional

73a

Guidebook. Factors to consider include, for ex-

ample:

Does the tributary, in combination with its ad-

jacent wetlands (if any), have the capacity to

carry pollutants or flood waters to TNWs, or

to reduce the amount of pollutants or flood

waters reaching a TNW?

Does the tributary, in combination with its

adjacent wetlands (if any), provide habitat and

lifecycle support functions for fish and other

species, such as feeding, nesting, spawning, or

rearing young for species that are present in

the TNW?

Does the tributary, in combination with its ad-

jacent wetlands (if any), have the capacity to

transfer nutrients and organic carbon that

support downstream foodwebs?

Does the tributary, in combination with its ad-

jacent wetlands (if any), have other relation-

ships to the physical, chemical, or biological

integrity of the TNW?

Note: the above list of considerations is not inclu-

sive and other functions observed or known to occur

should be documented below:

Significant nexus findings for non-RPW that

has no adjacent wetlands and flows directly or

indirectly into TNWs. Explain findings of

presence or absence of significant nexus be-

74a

low, based on the tributary itself, then go to

Section ITI.D:

Significant nexus findings for non-RPW and its

adjacent wetlands, where the non-RPW flows

directly or indirectly into TNWs. Explain

findings of presence or absence of significant

nexus below, based on the tributary in combi-

nation with all of its adjacent wetlands, then

go to Section III.D: See attached document

titled “Section III.C. Significant Nexus De-

termination”

Significant nexus findings for wetlands adja-

cent to an RPW but that do not directly abut

the RPW. Explain findings of presence or

absence of significant nexus below, based on

the tributary in combination with all of its ad-

jacent wetlands, then go to Section III.D:

D. DETERMINATIONS OF £JURISDICTIONAL

FINDINGS. THE SUBJECT WATERS/

WETLANDS ARE (CHECK ALL THAT APPLY):

TNWs and Adjacent Wetlands. Check all that

apply and provide size estimates in review ar-

ea:

[_] TNWs: linear feet width (ft), Or, acres.

[_] Wetlands adjacent to TNWs: acres.

75a

2. RPWs that flow directly or indirectly into

TNWs.

[] Tributaries of TNWs where tributaries

typically flow year-round are jurisdic-

tional. Provide data and rationale indi-

cating that tributary is perennial:

(_] Tributaries of TNW where tributaries

have continuous flow “seasonally” (e.g.,

typically three months each year) are ju-

risdictional. Data supporting this con-

clusion is provided at Section III.B.

Provide rationale indicating that tribu-

tary flows seasonally:

Provide estimates for jurisdictional wa-

ters in the review area (check all that ap-

ply):

[_] Tributary waters: linear feet width

(ft).

[_] Other non-wetland waters: acres.

Identify type(s) of waters:

3. Non-RPWs' that flow directly or indirectly in-

to TNWs.

[_] Waterbody that is not a TNW or an

RPW, but flows directly or indirectly into

a TNW, and it has a significant nexus

8 See Footnote # 3.

76a

with a TNW is jurisdictional. Data sup-

porting this conclusion is provided at

Section III.C.

Provide estimates for jurisdictional waters

within the review area (check all that apply):

[_] Tributary waters: linear feet width

(ft).

[_] Other non-wetland waters: acres.

Identify type(s) of waters:

Wetlands directly abutting an RPW that flow

directly or indirectly into TNWs.

[-] Wetlands directly abut RPW and thus

are jurisdictional as adjacent wetlands.

[_] Wetlands directly abutting an

RPW where tributaries typically

flow year-round. Provide data and

rationale indicating that tributary is

perennial in Section III.D.2, above.

Provide rationale indicating that

wetland is directly abutting an

RPW:

[_] Wetlands directly abutting an RPW

where tributaries typically flow

“seasonally.” Provide data indicat-

ing that tributary is seasonal in Sec-

tion III.B and rationale in Section

III.D.2, above. Provide rationale

77a

indicating that wetland is directly

abutting an RPW:

Provide acreage estimates for jurisdictional

wetlands in the review area: acres.

Wetlands adjacent to but not directly abutting

an RPW that flow directly or indirectly into

TNWs.

[_] Wetlands that do not directly abut an

RPW, but when considered in combina-

tion with the tributary to which they are

adjacent and with similarly situated ad-

jacent wetlands, have a significant nexus

with a TNW are jurisidictional. Data

supporting this conclusion is provided at

Section ITI.C.

Provide estimates for jurisdictional wetlands

in the review area: 250 acres.

Wetlands adjacent to non-RPWs that flow

directly or indirectly into TNWs.

(<] Wetlands adjacent to such waters, and

have when considered in combination

with the tributary to which they are ad-

jacent and with similarly situated adja-

cent wetlands, have a significant nexus

with a TNW are jurisdictional. Data

supporting this conclusion is provided at

Section ITI.C.

78a

Provide estimates for jurisdictional wetlands

in the review area: 155 acres.

7. Impoundments of jurisdictional waters.’

As a general rule, the impoundment of a juris-

dictional tributary remains jurisdictional.

[_] Demonstrate that impoundment was cre-

ated from “waters of the U.S.,” or

[_] Demonstrate that water meets the crite-

ria for one of the categories presented

above (1-6), or

[_] Demonstrate that water is isolated with a

nexus to commerce (see E below).

E. ISOLATED [INTERSTATE OR INTRA-STATE)

WATERS, INCLUDING ISOLATED WETLANDS,

THE USE, DEGRADATION OR DESTRUCTION

OF WHICH COULD AFFECT INTERSTATE COM-

MERCE, INCLUDING ANY SUCH WATERS

(CHECK ALL THAT APPLY):”

[_] which are or could be used by interstate or

foreign travelers for recreational or other

purposes.

* To complete the analysis refer to the key in Section III.D.6 of

the Instructional Guidebook.

'° Prior to asserting or declining CWA jurisdiction based solely on

this category, Corps Districts will elevate the action to Corps and EPA:

HQ for review consistent with the process described in the Corps/EPA

Memorandum Regarding CWA Act Jurisdiction Following Rapanos.

79a

from which fish or shellfish are or could be

taken and sold in interstate or foreign com-

merce.

which are or could be used for industrial pur-

poses by industries in interstate commerce.

Interstate isolated waters. Explain:

ae ee. Se

Other factors. Explain:

Identify water body and summarize rationale sup-

porting determination:

Provide estimates for jurisdictional waters in the

review area (check all that apply):

{_] Tributary waters: linearfeet width (ft).

[_] Other non-wetland waters: acres.

Identify type(s) of waters:

[_] Wetlands: acres.

NON-JURISDICTIONAL WATERS, INCLUDING

WETLANDS (CHECK ALL THAT APPLY):

[_] If potential wetlands were assessed within the

review area, these areas did not meet the cri-

teria in the 1987 Corps of Engineers Wetland

Delineation Manual and/or appropriate Re-

gional Supplements.

[_] Review area included isolated waters with no

substantial nexus to interstate (or foreign)

commerce.

80a

[_] Prior to the Jan. 2001 Supreme Court

decision in “SWANCC,” the review area

would have been regulated based solely

on the “Migratory Bird Rule” (MBR).

[_] Waters do not meet the “Significant Nexus”

standard, where such a finding is required for

jurisdiction. Explain:

[_] Other: (explain, if not covered above):

Provide acreage estimates for non-jurisdictional

waters in the review area, where the sole potential

basis of jurisdiction is the MBR factors (i.e., pres-

ence of migratory birds, presence of endangered

species, use of water for irrigated agriculture), us-

ing best professional judgment (check all that ap-

ply):

[_] Non-wetland waters (i.e., rivers, streams):

linear feet width (ft).

[_] Lakes/ponds: acres.

[_] Other non-wetland waters: acres. List type

of aquatic resource:

[_] Wetlands: acres.

Provide acreage estimates for non-jurisdictional

waters in the review area that do not meet the

“Significant Nexus” standard, where such a find-

ing is required for jurisdiction (check all that ap-

ply):

Sla

[_] Non-wetland waters (i.e., rivers, streams):

linear feet width (ft).

[_] Lakes/ponds: acres.

[_] Other non-wetland waters: acres. List type

of aquatic resource:

[_] Wetlands: acres.

SECTION IV: DATA SOURCES.

A. SUPPORTING DATA. Data reviewed for JD

(check all that apply--checked items shall be in-

cluded in case file and, where checked and re-

quested, appropriately reference sources below):

[x] Maps, plans, plots or plat submitted by or on

behalf of the applicant/consultant:

[_] Data sheets prepared/submitted by or on be-

half of the applicant/consultant.

[] Office concurs with data _ sheets/

delineation report.

[_] Office does not concur with data sheets/

delineation report.

[_] Data sheets prepared by the Corps:

[_] Corps navigable waters’ study:

{X] U.S. Geological Survey Hydrologic Atlas:

<] USGS NHD data.

(<] USGS 8 and 12 digit HUC maps.

82a

U.S. Geological Survey map(s). Cite scale &

quad name: 1:24,000, Newfolden, Minnesota.

(<] USDA Natural Resources Conservation Ser-

MY OOO

vice Soil Survey. Citation: Marshall Coun-

ty, Minnesota.

National wetlands inventory map(s). Cite

name: Newfolden, Minnesota.

State/Local wetland inventory map(s):

FEMA/FIRM maps:

100-year Floodplain Elevation is: (National

Geodectic Vertical Datum of 1929)

Photographs: [X] Aerial (Name & Date):

Lidar, 2011, FSA 2010.

or [_] Other (Name & Date):

Previous determination(s). File no. and date

of response letter:

Applicable/supporting case law:

Applicable/supporting scientific _ literature:

Mitch, W.J., Gosselink, J.G. (2000). Wetlands

(Third ed.) New York: John Wilry & Sons

Inc.

Other information (please specify): Maps,

JD determination, property owner statement

and on-site photos submitted on behalf of the

83a

applicant on December 19, 2011, by Widseth,

Smith and Nolting.

B. ADDITIONAL COMMENTS TO SUPPORT JD:

Conclusions regarding Section III B.2 were reached

with field review on June 1 and December 1, of 2011.

These conclusions are therefore based on those site

visits, knowledge of local stream morphology, geologic

characteristics, and GIS review. Land use surround-

ing the relevant reach is predominantly agricultural,

peat mining, with a smaller amount of residential.

The functions of the wetlands adjacent to the relevant

reach combined with the functions provided by the

tributary results in a significant nexus to the Red

River, a TNW _ After reviewing and considering the

data submitted by the applicant, the Corps rejects the

applicant’s position that the wetland review area is

isolated. The Corps determination is that there is a

significant nexus between the wetland review area and

the Red River (TNW).

ection III.C. Significant Nexus D ination

Wetlands and streams are recognized as providing a

number of important functions to downstream waters,

both individually and cumulatively. These include

maintenance of water quality, mitigation of storm and

flood flows, maintenance of base flows, energy and

nutrient export, pollutant and nutrient transformation

and retention, and maintenance of wildlife habitat.

The functions provided by the relevant reach and the

84a

nexus to the Red River are discussed in the following

paragraphs.

S ¢ Functions Provided by Wetlands in 1

Relevant Reach

The wetlands adjacent to the relevant reach of the

tributary total approximately 590 acres. The wet-

lands are comprised of rich fen, aspen forest, willow

swamp, and hardwood swamp vegetative communities.

From a hydrogeomorphic classification perspective the

wetlands are classified primarily as organic flats which

are characterized as having a water regime dominated

by precipitation while water loss is typically by over-

land flow and seepage to groundwater. Organic flats

are also distinctive in that their elevation and topog-

raphy are controlled by the vertical accretion of or-

ganic matter. Within the review area, Corps staff has

confirmed that surface water flows from/through the

wetland are generally to the south towards the Middle

River. The surface elevations in the wetlands vary

between 1,141 ft in the north to 1,134 ft in the south.

The outlet of the wetlands is a man made surface ditch

that carries flows to an unnamed tributary of the Mid-

dle River. The wetlands in the relevant reach have

been assessed to function at a high level for all the

functions considered’, however, a few are called out

' Based on the high quality plant communities present and the

undisturbed condition of the wetlands and adjacent uplands.

85a

for the significance of their relationship to the Red

River.

Flood and Stormwater Storage/Attenuation. The

wetlands adjacent to the relevant reach of the tribu-

tary provide an important flood storage function.

During a site investigation in June, 2011 Corps staff

noted between 6 and 20 inches of standing water at

various locations within and outside of the wetlands in

the review area. This surface water was being slowly

released south into the unnamed tributary to the Mid-

dle River. The amount of surface water in the wet-

land decreased throughout the growing season, an

indication that the wetland stores water early in the

spring and summer. The timing of the storage func-

tion provided by the wetlands parallels the stream flow

of the unnamed tributary such that the storage of

melting snow and precipitation is attenuated in the

wetlands and then released through the unnamed

tributary from mid-march through june in normal

years. To estimate the potential surface water stor-

age capacity of the wetlands in the relevant reach, the

Corps utilized surface elevation data to conduct a

coarse scale GIS based analysis. The analysis esti-

mated that the wetland is able to provide over 200

acre-feet of storage.” This estimate does not consider

the effects of vegetation, evapotranspiration, or the

storage capacity of soils at the site. This potential

* A more detailed description of the methods for determining

wetland storage is available in the administrative record.

86a

storage is particularly important following spring

runoff and following storm events when wetlands help

to elongate the period during which water is released

downstream thereby reducing the peak of the hydro-

graph in the Red River. This has an overall effect of

reducing downstream flooding by holding water in

these upper portions of the watershed.

The wetlands in the rele-

vant reach transform and store pollutants and nutri-

ents, which is important for downstream water quality.

The wetlands at the site are receiving chemical inputs

from adjacent uplands, precipitation, and atmospheric

deposition. The transformation of these inputs is the

primary source of nutrients and organic carbon into

the riverine system. The nitrogen, phosphorus, and

carbon cycling that occur in these wetlands, coupled

with the surface flows and groundwater discharge to

the tributary system is important to the productivity

and health of the downstream receiving waters.

These benefits are not limited to the intermediate

waters between the relevant reach and the TNW but

also to the Red River itself. As described in the chap-

ter on Northern Peatlands in Mitsch and Gosselink’s

Wetlands, peatlands with surface outflows export nu-

trients, organic carbon, and energy. These wetlands

also serve as considerable sinks of nutrients and in

situations where the peat is eroded from the source

have the potential to release much more significant

quantities of nitrogen, phosphorus, and mercury.

Since the vast majority of stream miles and wetlands

87a

in the watershed are located in and along headwater

streams, the biogeochemical processing functions they

provide are essential to maintaining water quality and

aquatic habitat and, if present, eliminating identified

impairments. For the relevant reach, the functions

performed by these wetlands is more important given

that there are over five hundred acres of wetlands

present performing these functions.

g ¢ Functi Provided by the Tribut

the Relevant Reach

The relevant reach of the tributary is an unnamed first

order stream that flows to the Middle River. The

flow regime of the tributary is intermittent® The

tributary originates approximately 1,800 feet south-

east of the review area. It flows approximately 1,500

feet southeast before merging with another first order

stream and entering the Middle River. The drainage

area is approximately 2.4 square-miles. The drainage

area is relatively unaltered and consists predominantly

of open space with smaller areas of agriculture, resi-

dential dwellings, and roads.

* The Corps has not quantitatively assessed the flow regime of

the tributary but, based on the size of the drainage area, observed

flow through the wetlands in June, and direct observations of

groundwater supported pools in the stream channel, has made a

determination that the stream has an intermittent flow regime and

would also be considered a seasonal stream per agency guidance.

88a

The physical and hydrologic functions of headwater

streams are associated with the transfer of mass, mo-

mentum, energy, and organisms. The streams essen-

tially function as conduits with the rate of transfer

influenced by the flow characteristics of the stream

including magnitude (discharge), frequency, duration,

timing (seasonality of different flow regimes), and the

rate of change (transition time between flows of given

magnitudes). The District has characterized the flow

in the tributary as intermittent with continuous flow

occurring from mid-March through June in normal

years. Based on the approximate channel dimensions

recorded during the December 2011 site investigations

and a maximum water depth in the channel of two feet,

the unnamed tributary has an estimated channel cross

sectional area of 5.5 square feet. Assuming an a

range of average velocities between 0.1 and 1.5 feet/

second for flows in the channel between March and

June during the spring, the discharge to the Middle

River would range from 0.55-8.25 cubic feet/second.

Outside of the continuous flows in the spring, addi-

tional flow events occur in response to precipitation

events and in the fall when precipitation exceeds

evapotranspiration prior to winter freeze and snowfall.

In northern Minnesota, discharge and velocity for this

type of channel would typically

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