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

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No. 15-290

UNITED STATES ARMY CORPS OF ENGINEERS,

PETITIONER

Vv.

HAWKES Co., INC., ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE PETITIONER

DONALD B. VERRILLI, JR.

Solicitor General

Counsel of Record

JOHN C. CRUDEN

Assistant Attc ney General

MALCOLM L. STEWART

Deputy Solicitor General

GINGER D. ANDERS

Assistant to the Solicitor

General

AARON P. AVILA

JENNIFER SCHELLER NEUMANN

ROBERT J. LUNDMAN

DAVID R. COOPER Attorneys

Chief Counsel Department of Justice

United States Army Washington, D.C. 20520-0001

Corps of Engineers SupremeCtBriefs@ "sdoj.gov

Washington, D.C. 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)

TABLE OF CONTENTS

Page

I ccncnsemesesrnssensscsenenssmmmmemnicnemenemnnmenennnten 1

FR creceescsnnserrenssnsecnsrmssnenntentneninseemmmenemnseeammeneentes 1

Statutory and regulatory provisions involved ....................-00+ 2

STITT ener icsinsitnntteindeanennnanimmnennedtesseatmnamianecstantensnepeensemenneneeines 2

RII ss itecirtsincentnnieatnianeednintedsseteasemmabenanieiiie 16

Argument:

A jurisdictional determination is not immediately

reviewable under the APA because it is not “final

agency action” and because there are other adequate

ND sentecincsesnnreniscermmentmninnnantnneee 20

A. Jurisdictional determinations assist landowners

to assess their rights and obligations under the

B. A jurisdictional determination is not “final agency

action” because it does not determine legal rights

or obligations, or impose legal consequences........... 25

1. The CWA itself, not the jurisdictional deter-

mination, imposes legal obligations on respond-

mination may have a practical effect on the

recipient’s assessment of the advantages and

disadvantages of alternative courses of conduct,

it does not have the legal effect necessary for

I I sccctercncetcstscnssetnteserteesennssemene 35

3. Sackett does not suggest that a Corps juris-

dictional determination is final agency action..... 42

C. There are adequate alternative opportunities for

respondents to obtain judicial resolution of the

Issue Of CWA COVETAZE...........scsececesseseesessereeseeserserenees 44

IND cccncnsssenseninnitensantectemisenssgeecassmammmenesemeneesnnsessens 51

Appendix — Statutory and regulatory provisions................. la

(IIT)

TABLE OF AUTHORITIES

Cases: Page

Abbott Labs. v. Gardner, 387 U.S. 136 (1967).............0c000+ 4l

Adenariwo v. Federal Mar. Comm’n, No. 14-1044,

2015 WL 8744623 (D.C. Cir. Dec. 15, 2015) ................2006 34

Air Brake Sys., Inc. v. Mineta, 357 F.3d 632

I i eit teeta ica a tltamiamacts 23, 33, 34

O'Connor, 747 F.2d 748 (D.C. Cir. 1984),

cert. denied, 474 U.S. 909 (1985) .............ss000 23, 33, 36, 37

Belle Co. v. United States Army Corps of E'ng’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 (filed Apr. 16, 2015).... 24, 26, 45

Bennett v. Spear, 520 U.S. 154 (1997).....11, 18, 25, 38, 39, 43

CSX Transp., Inc. v. Surface Transp. Bd.,

Fe ee ds Gre i cctencnctncccentecctscenscsecetcanantensases 38

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 Se esccenstiicecscsiieinticntsiinthintsiiaeenmensceencens 9, 29, 46

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

Se ee I iniesterssciccrsnncipianiicitoenianaittipmseranenemneeeaes 41

Decker v. Northwest Envtl. Def. Ctr., 133 S. Ct. 1326

Si inccstesiianenbiiiniittingaaitnie ined alas atasapmmmramaeitatampemmanets 3

EPA v. California, 426 U.S. 200 (1976)..........cccccccecceseeseesees 45

FTC v. Standard Oil Co., 449 U.S. 232 (1980).............. 18, 37

Cases—Continued: Page

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

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

Sr es ceciernterecnentinssnesneneniaidetemniteseniin 26, 31, 32

Florida Power & Light Co. v. EPA, 145 F.3d 1414

SII, UI ie intiniinnatnescmmansiticimuabiidedastimigumeciantatnensan 33, 36

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

Holistic Candlers & Consumers Ass'n v. FDA,

664 F.3d 940 (D.C. Cir.), cert. denied, 133 S. Ct. 497

ERECT ee EC OS ne 23, 33

Independent Equip. Dealers Ass'n v. EPA,

Ee ee de Ge Bi cicccnesnccencssnssvensscecceccsnccesnsscese 35

Kelly v. EPA, 203 F.3d 519 (7th Cir. 2000) ............:ccccceeeeee 30

National Ass'n of Home Builders v. Norton,

GES FBG GA, Ga Bi vccccscccccncnsscsrscccssnsssscsscscessseee 35, 36

National Automatic Laundry & Cleaning Council v.

Shultz, 443 F.2d 689 (D.C. Cir. 1971) .........cccccccecseeees 23, 24

National Park Hospitality Ass'n v. Department of

the Interior, 538 U.S. 803 (2008) ........ssessssessesssceseseereeees 24

Ocean Cnty. Landfill Corp. v. United States Envtl.

Prot. Agency, 631 F.3d 652 (3d Cir. 2011)...............0..0000 34

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

Eng’rs, 633 F.3d 278 (4th Cir. 2011) .00.......ccccecsesseeeeeenees 45

Rapanos v. United States, 547 U.S. 715 (2006)........ 2, 46, 47

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

STITT eesieiiceesepnetiaiatieineiiee inant dha lditaasiaeiatanteeriainitanmeanmenaea 30

Sackett v. EPA, 132 S. Ct. 1367 (2012) .00..........cccccee0e passim

USAA Fed. Sav. Bank v. McLaughlin, 849 F.2d 1505

is St TIE ctininenstnrintepenntecnniennnininsmnineenateneetmeneninascees 33

United States v. Cundiff, 555 F.3d 200 (6th Cir.),

cert. denied, 558 U.S. 818 (2009) ..........scsssssesesssesnseeneseees 31

Cases—Continued: Page

United States v. Deaton, 332 F.3d 698 (4th Cir. 2003),

cert. denied, 541 U.S. 972 (2004) ...........cccsesssesseseseeseerseeees 10

United States v. Riverside Bayview Homes, Inc.,

iii ciirctiaiccenntasinienenninnanisianmnaeeinnsiasennincenss 2

West Va. Highlands Conservancy, Inc. v. Huffman,

ee ee ee i ccc cccnsnesncsnccmnsencensememnsccnsessovens 46

Statutes and regulations:

Administrative Procedure Act, 5 U.S.C. 701 et seq.............. 9

SP EIN iisteintcetgunienenntnmstinitiintientinineetinineil passim, la

es Ua sncisteaciserenininieniniaminnsnianiasencinemnietiamimenntinnaiinins 13

ee TT rtsierieininicnietcentatiiamcniiipiianiieiianioniaiinasias 30

Clean Water Act, Pub. L. No. 92-500, § 2, 86 Stat. 816

I ial iaeceraeliadaliaes 2

I iii aii tae eainnala ini anldasid naan 2

ITI TTTEI crsionsitecieiictnenitnniiincentesiapniennumtiibiapiiansiis 2

es IE iensennsnnisinieundeieniniinimantel 2, 6, 27, 40, la

ees I icevesteniensensnninesiciegeneneiusisiniisnmmtenmemannetiae 3, 2a

es I tiiccneniercsceninensaieninesionteneits 3, 10, 30, 50, 2a

Orn 11, 42, 2a

a niecctscnccnsiscommecmaionninimnenn 10, 31, 50, 3a

Bs ST ccernercsccineneninnesntsiininsicndmasaitaniaiati 32, 4a

| es 9, 31, 32, 44, 50, Ga

ee a i irinscnncnsincsnnnsccsnsaincemenenntennnin 10, 30, 50, 7a

EN 30, 7a

Se ls CD wiinicanesnsennsnstenentennennnanennes 10, 30, 10a

33 U.S.C. 1342 (2012 & Supp. IT 2014)...................... 2,27

33 U.S.C. 1344 (§ 404) ...........ccsccccssercesesssesseees passim, 12a

Fe es tai incnninnctcenneimainiegmeenedentens 6, 7, 45, 12a

I: IITs ecsencisrcintenniieenntitunsteienndlibacinnundainnsaiits 6

Fp Weds GREED coscccccccensnscnssensnsscentsnesvessasnestenseaennes 6, 12a

Vil

Statutes and regulations—Continued: Page

I 6, 12a

EE RR ee 9, 28, 13a

ERE ee ee 3, 6, 40, 15a

a 2,27

| SS Mee el Me Sete Riper 2

I 3, 10, 41, 50, 17a

I 3, 10, 41, 50, 18a

Endangered Species Act of 1973, 16 U.S.C. 1531

I cerretteentereieenvccrcenctarersenscneceensnsenteamniaenonienesmnsmiesiamenniies 38

LT aera et 39

i ae ee a 4

33 C.F.R.:

SR Cn a ee 28

NT 4, 34, 19a

ILS Se a SR ORT Mae 8

EERE Cee Re 8

SEER SANA a 6

EERE eee ma Re ae eC vO ES 6, 8

TE a el oe EMRE 4

Pt. 326:

EET ne De Ta ee TT 9

Section SBG.Ble)N(1 Mi) .....eccccecececoccccessssesoseceesesesse-..... 44

RE AE Se ee a eS a 10

ESSE ee ee ee ee ED 6

EE NEN Ie eT A, 7, 19a

EERE et SE EAL LEE 7, 20a

IRS ER REE RAO aT DOR EE 2 7

RE ETL a Ren ae eee ier ea 7, 2la

_ EET mae eee 7, 22a

VIII

Regulations—Continued: Page

RE EL Le ne ee aR 5, 28, 29

| eee 4, 5, 8, 25, 27, 23a

Section BB1 B(aN2) .........00.cccecccoccccesecseceee 9, 21, 29, 25a

aaa ela 45

ET Ce ET oN 9, 45

II Re ee Te 4, 5, 25

Pt. 332:

|” EEE Reena a nen 8

40 C.F.R.:

| A a a eS 6, 8

TERE Tt cone aT ERR 8

Miscellaneous:

51 Fed. Reg. (Nov. 13, 1986):

| RST REESE SES EOC OnE ae a ee 34

0 Gi neccentnnarsenaniatescctiainenisitiniatenenennnntintininnnicgnaniaes 34

65 Fed. Reg. 16,488 (Mar. 28, 2000)..............cccccsscsssssseseeeeeee 34

KS ee 9, 32

77 Fed. Reg. (Feb. 21, 2012):

is, Tan iiceitateieieidneceiieaiinhceieiliaincamntichcciltcipntiaesdimmetiatiseiaaiinias 7

ala la 7

Ee Re CE Re 7

A ee einsesstncceisnencsinemsenmemneinimenisinaninesinietnnaion 7

i: Ti inbdehdhachidibeincnipabinialdesenitiaiiimiieibaaiaaeeaiaiaseinieed 6, 47

Sidi TEE nites niediiteeiaitahiiiniipnieeciphienieaiecceaiilincansieneliiebiteniin 7

ITT iiiiiiceiairiiadtiniesinincedapeinieiieceaiatsiiiaisiailaniiaisiaaatiin 7

i, Tire cnieireiiebenirsminsiniesaineneinsieianidetienaianiatbasiainnieameiiminimmie 7

79 Fed. Reg. 22,188 (Apr. 21, 2014) .............sceccccsssseeseseseeeees 16

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

Miscellaneous—Continued: Page

ih TT sieiinchianlenihieideipiniaepadidencinineninenanaisnanniiianiniiosuiitinhi 16

I Tsai eiiesiindaneeidiniindaendaieiitidiiiaial 5

Sh Ohiccrccesencenssesnennsmnecsnsesnenenenmneenennamemenmen 16

David Sunding & David Zilberman, The Economics

of Environmental Regulation by Licensing: An

Assessment of Recent Changes to the Wetland

Permitting Process, 42 Nat. Resources J. 59

U.S. Army Corps of Eng’rs:

Dep't of the Army, Office of the Chief Eng’rs,

& EPA, Memorandum of Understanding,

Geographical Jurisdiction of the Section

A teictinsceterntenentctecnnsnetninnnnen 4, 22

Inst. for Water Res., Cost Analysis for the 2000

Issuance and Modification of Nationwide

Fe ED creerenanimmannnen 48, 49

Inst. for Water Res., The Mitigation Rule Retro-

spective: A Review of the 2008 Regulations

Governing Compensatory Mitigation for

Losses of Aquatic Resources (Oct. 2015),

http://www.iwr.usace.army.mil/Portals/

70/docs/iwrreports/2015-R-03.pdf.................ce000 47, 48

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

Tat iccinduadtiinennenennetimeninanete 5, 8, 28, 30

Regulatory—Protecting the Integrity of Ameri-

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

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

strongpt/fyl6sp_regulatory.pdf..................... 5, 23, 47

In the Supreme Court of the Anited States

No. 15-290

UNITED STATES ARMY CORPS OF ENGINEERS,

PETITIONER

Vv.

HAWKES Co., INC., ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE PETITIONER

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1la-

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

district court (Pet. App. 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 (Pet. App. 103a-104a). The petition for

a writ of certiorari was filed on September 8, 2015,

and the petition was granted on December 11, 2015.

The jurisdiction of this Court rests on 28 U.S.C.

1254(1).

(1)

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

Pertinent statutory and regulatory provisions are

reproduced in the appendix to this brief. App., infra,

la-26a.

STATEMENT

1. Congress enacted the Clean Water Act (CWA or

Act) “to restore and maintain the chemical, physical,

and biological integrity of the Nation’s waters.” 33

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

816 (33 U.S.C. 1251 et seq.). Section 301 of the CWA

prohibits the “discharge of any pollutant by any per-

son” except in compliance with the Act. 33 U.S.C.

1311(a). “[Djischarge of a pollutant” is defined to

mean “any addition of any pollutant to navigable wa-

ters from any point source.” 33 U.S.C. 1362(12). The

Act defines the term “navigable waters” to mean “the

waters of the United States, including the territorial

seas.” 33 U.S.C. 1362(7); see Rapanos v. United

States, 547 U.S. 715, 724-725 (2006) (plurality opinion);

United States v. Riverside Bayview Homes, Inc., 474

U.S. 121, 135 (1985).

The CWA provides that any pollutant discharge in-

to the waters of the United States must be authorized,

either by the statute itself or by a permit granted by

the United States Army Corps of Engineers (Corps),

the Environmental Protection Agency (EPA), or an

authorized State. 33 U.S.C. 1344 (permit program for

discharge of dredged or fill materials); see 33 U.S.C.

1342 (2012 & Supp. II 2014) (permit program for dis-

charge of other pollutants). “Compliance with a per-

mit issued pursuant to” Section 1344 “shall be deemed

compliance” with, inter alia, Section 1311’s general

ban on discharges of pollutants into navigable waters.

33 U.S.C. 1344(p). The Act establishes an enforce-

ment framework that subjects a landowner or other

person who has engaged in an unauthorized discharge

to civil penalties and, for certain negligent or knowing

violations, criminal prosecution.’ 33 U.S.C. 1319. In

addition to establishing various government enforce-

ment mechanisms, the CWA authorizes aggrieved

private citizens to file suit against persons who are

alleged to have made unlawful pollutant discharges

into waters of the United States. See 33 U.S.C.

1365(a)(1) and (f); Decker v. Northwest Envtl. Def.

Ctr., 133 S. Ct. 13826, 1333-1334 (2013). A landowner

who plans to discharge pollutants therefore must

determine whether its interests would be best served

by seeking a permit, or whether it is sufficiently con-

fident that its activities will not violate the CWA to

proceed without first seeking a permit.

In making that determination, the landowner must

assess, inter alia, whether the property in question

contains waters of the United States, such that the

CWA’s provisions apply to discharges of pollutants

into those waters. The CWA itself does not establish

any mechanism whereby a property owner, without

first seeking a permit or discharging without a permit,

may obtain the government’s view as to whether the

Act applies to particular sites. See generally 33

U.S.C. 1319, 1344. In order to assist property owners

in evaluating their statutory options, however, the

' The CWA’s provisions apply to any “person” who makes an

unauthorized discharge into waters of the United States, regard-

less of whether the person owns the property on which the waters

are found. See, e.g., 33 U.S.C. 1319%a). For simplicity, this brief

refers to “landowners” or “property owners” as examples of the

persons to whom the Act applies.

Corps has long responded to inquiries concerning

whether particular waters fall within the CWA’s cov-

erage. See, e.g., Dep’t of the Army, Office of the Chief

of Eng’rs, & EPA, Memorandum of Understanding,

Geographical Jurisdiction of the Section 404 Program

1 (1980) (Memorandum) (on file with the Office of the

Solicitor General) (stating that the “District Engi-

neer” will, in response to “pre-application inquiries,”

“establish the boundaries of the waters of the United

States, as they apply to the inquiry, at the earliest

possible date”).

The Corps’ regulations authorize (but do not re-

quire) the Corps to provide an inquiring party with a

“(jjurisdictional determination” that expresses the

agency’s view on whether a particular property con-

tains “waters of the United States” that are subject to

the agency’s regulatory authority under Section 404 of

the CWA, 33 U.S.C. 1344. 33 C.F.R. 331.2 (emphasis

omitted); see 33 C.F.R. 320.1(a)(6), 325.9; see also 33

C.F.R. Pt. 331, App. C. The applicable regulations

define the term “jurisdictional determination” 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

* * * Section 9 or 10 of the Rivers and Harbors Act

of 1899 (33 U.S.C. 401 et seq.).” 33 C.F.R. 331.2. That

definition further provides that jurisdictional deter-

minations “do not include determinations that a par-

ticular activity requires a * * * permit.” /bid. Nei-

ther the CWA nor its implementing regulations re-

quire a landowner to obtain a jurisdictional determi-

nation before discharging 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, 1 1 (June 14,

2005) (RGL 05-02). When the Corps issues an ap-

proved jurisdictional determination, an affected party

may pursue an administrative appeal of that determi-

nation within the Corps. See 33 C.F.R. Pt. 331.

The Corps issues tens of thousands of approved ju-

risdictional determinations every year. See 80 Fed.

Reg. 37,065 (June 29, 2015); Corps, Regulatory—

Protecting the Integrity of America’s Waters (Feb. 2,

2015), http://www.usace.army.mil/Portals/2/docs/civil-

works/budget/strongpt/fyl6sp regulatory.pdf (Regu-

latory). Few approved jurisdictional determinations

are appealed. The Corps informs this Office that in

fiscal year 2015, interested parties filed eight adminis-

* Where appropriate, this brief uses the term “affirmative juris-

dictional determination” to refer to a Corps determination that

waters of the United States are present at the relevant site, and

“negative jurisdictional determination” to refer to a Corps deter-

mination that such waters are not present. The Corps’ regulations

also provide for issuance of preliminary jurisdictional determina-

tions, 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.

831.2. Preliminary jurisdictional determinations thus may deline-

ate waters on a site, but they do not reflect any considered as-

sessment of whether “waters of the United States” are present.

Ibid.; see Corps, Regulatory Guidance Letter No. 08-02, 1% 4, 7

(June 26, 2008).

trative appeals of approved jurisdictional determina-

tions issued outside of the permitting process.

2. Whether or not a jurisdictional determination

has been requested or issued, a landowner planning to

discharge dredged or fill material has two options

under the CWA. It may seek a permit, or it may pro-

ceed without one.

a. Section 404 of the Act, 33 U.S.C. 1344, authoriz-

es the Corps to issue permits “for the discharge of

dredged or fill material into the navigable waters at

specified disposal sites.” 33 U.S.C. 1344(a); see 33

U.S.C. 1344(d); see also 33 C.F.R. Pts. 323, 325; 40

C.F.R. Pt. 230. Section 404 provides for both individ-

ual permits and general permits. 33 U.S.C. 1344(a)

and (e). The effect of either an individual or general

permit is to render lawful discharges undertaken in

accordance with its terms. See 33 U.S.C. 1311(a),

1344(p).

The overwhelming majority of discharges are au-

thorized under general permits, each of which author-

izes a particular category of activity within a specified

geographic area. The CWA authorizes the Corps to

issue general permits on a state, regional, or nation-

wide basis. 33 U.S.C. 1344(e)(1); 33 C.F.R. Pt. 330

(nationwide permit program). The general-permit

program serves to promptly authorize activities that

involve pollutant discharges into covered waters but

will have only minimal adverse effects on waters of the

United States. 77 Fed. Reg. 10,268 (Feb. 21, 2012)

(“Nationwide permits help relieve regulatory burdens

on small entities who need to obtain [Corps] permits”

by “provid[ing] an expedited form of authorization.”).

When the Corps receives a Section 404 permit ap-

plication, it first determines whether the proposed

discharge is covered by an existing general permit. 33

C.F.R. 330.1(f). If the Corps verifies that the dis-

charge falls within the terms of a general permit, the

landowner may proceed.* A discharge made in com-

pliance with the conditions imposed by an applicable

general permit thus may be lawfully undertaken with-

out an individual permit. See generally 33 C.F.R.

330.1.

There are currently 50 nationwide general permits.

77 Fed. Reg. at 10,184 (reissuing 48 existing nation-

wide permits and issuing two new ones). They author-

ize, for example, minor discharges (Nationwide Permit

18), minor dredging (Nationwide Permit 19), certain

restoration activities (Nationwide Permit 27), residen-

tial developments with minor impacts (Nationwide

Permit 29), and agricultural activities with minor

impacts (Nationwide Permit 40). Jd. at 10,202-10,203,

10,214-10,218, 10,223-10,224, 10,273, 10,275-10,276,

10,279.

If a landowner files a permit application and no

general permit covers the proposed discharge, the

Corps then determines whether an individual permit

should be issued. 33 U.S.C. 1344(a); 33 C.F.R. 330.1(c)

and (d). An individual permit may be necessary for

larger projects with a greater impact on waters of the

United States. The individual-permit program en-

sures that an applicant avoids or minimizes impacts on

waters of the United States and provides compensato-

ry mitigation for any remaining unavoidable impacts

* Some general permits provide that a person whose discharge

meets the terms and conditions of the permit need not apply for

the permit or otherwise notify the Corps before proceeding with

the discharge. See 33 C.F.R. 330.1(e), 330.4(a).

on such waters. See, e.g., 33 C.F.R. 320.4(r), 332.1; 40

C.F.R. Pt. 230.

In evaluating a permit application, the Corps con-

siders, inter alia, the impact of the planned discharge

on covered waters, available alternatives, and whether

any conditions should be placed on the discharge. See

generally 33 C.F.R. 320.4, Pt. 325; 40 C.F.R. 230.10.

As part of the permit-application process, the land-

owner may place CWA coverage in issue by request-

ing a preliminary or approved jurisdictional determi-

nation. See 33 C.F.R. 331.2; Corps, Regulatory Guid-

ance Letter No. 08-02, 19 1-4, 7 (June 26, 2008) (RGL

08-02). Thus, if the agency has not already provided a

jurisdictional determination in response to the land-

owner’s request, the Corps will prepare one upon

request in the context of the permitting process. RGL

08-02 9 2.

The Corps informs this Office that in fiscal year

2015, the Corps issued more than 54,000 general-

permit verifications and 3100 individual permits. The

majority of individual-permit applications were au-

thorized within 120 days of application, and most re-

quests for verification of general-permit authoriza-

tions were completed within 60 days. The Corps de-

nied 97 permit applications. Permit denials are unu-

sual because the Corps is ordinarily able to issue a

permit authorizing the discharge, including by impos-

ing conditions on the discharge that are developed in

consultation with the applicant. If the Corps is unable

to authorize the discharge or the applicant rejects the

proposed conditions, the permit is denied. 33 C.F.R.

331.2.

If the applicant has exhausted administrative rem-

edies and is dissatisfied with the Corps’ final permit-

ting decision, it may seek judicial review under the

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

seg. In such an APA challenge, the applicant may

contest, inter alia, the Corps’ determination that the

property at issue contains waters protected by the

CWA. 33 C.F.R. 331.5(a)(2); 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);

33 C.F.R. 331.12.

b. Alternatively, a landowner may proceed without

seeking a permit. The landowner might do so because

it believes that its property does not contain waters

regulated by the CWA, or because it believes that its

activities do not require a permit even if covered

waters are present. The CWA exempts discharges

into regulated waters resulting from numerous

activities, including normal farming and certain

road-maintenance activities, from the permitting re-

quirements. 33 U.S.C. 1344(f). If a discharge into

waters of the United States is not authorized by the

statute or by a permit, however, the property owner

may be liable for civil penalties that accrue each day

the violation persists.‘ 33 U.S.C. 1319(d). If the gov-

ernment determines that a discharge violates the

CWA, it may take enforcement action.

In such a circumstance, the government may pro-

ceed administratively, including by issuing a warning

letter, a “cease and desist” order, 33 C.F.R. 326.3(c),

‘ The Act initially authorized a per-day penalty of up to $25,000.

33 U.S.C. 1319(d). Congress subsequently authorized the EPA to

adjust the maximum penalty for inflation, see 28 U.S.C. 2461 note,

and the current maximum per-day penalty is $37,500. 74 Fed. Reg.

627 (Jan. 7, 2009).

or an administrative compliance order, see 33 U.S.C.

1319(a). 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 also may institute an

administrative proceeding to impose civil penalties.

33 U.S.C. 1319(g). The Act provides for judicial re-

view of administrative penalty orders, 33 U.S.C.

1319(g)(8), and the landowner may challenge the order

on the ground that the CWA does not apply to the

property in question.

The government may also bring an enforcement ac-

tion 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 “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).

An aggrieved private plaintiff may also commence a

citizen suit, alleging that the defendant unlawfully

discharged pollutants into waters of the United

States, see 33 U.S.C. 1365(a)(1) and (f), and the de-

fendant may contest the issue of CWA coverage in

that context as well.

In any of those enforcement proceedings, a lana-

owner’s prior receipt of an affirmative jurisdictional

determination does not alter its rights or obligations

or expose it to additional penalties if its conduct is

found to have violated the CWA.

3. 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.” /d. 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 is “final agency action” subject to

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

S. Ct. at 1371-1372. A compliance order reflects the

EPA’s determination that a landowner has violated

the CWA or a permit issued under the CWA. See

ibid.; 33 U.S.C. 1319(a)(3). The Court in Sackett ex-

plained that the compliance order at issue in that case

represented the “consummation” of the agency’s deci-

sionmaking process because the EPA’s conclusion that

the Sacketts had violated the CWA was not subject to

further review within the agency. 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.”

Id. at 1371 (quoting Bennett, 520 U.S. at 178). The

Court explained that the order by its terms imposed

“the legal obligation to ‘restore’” the property in

question, and that the order required the Sacketts to

give the EPA access to their property. /bid. In addi-

tion, the order imposed “legal consequences” by “ex-

pos[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.

4. 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 a portion of that property for peat,

which is formed in wetlands. Hawkes has an existing

peat-mining operation nearby and would pay royalties

to the respondent property owners. Pet. App. 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. Pet. App. 6a. In February 2012, after further

meetings and visits to the property, the Corps provid-

ed Hawkes with an approved jurisdictional determina-

tion, which concluded that the property contains wa-

ters of the United States. /d. at 6a-7a. Respondents’

complaint alleges that, during the process of develop-

ing the jurisdictional determination, Corps employees

asserted that the permit process would be costly and

time-consuming. /d. at 6a; J.A. 15-16 (Am. Compl.

"4 40).

Respondents filed an administrative appeal of the

approved jurisdictional determination. In October

2012, finding that the approved jurisdictional deter-

mination lacked sufficient analysis to support a find-

ing of regulatory jurisdiction, the Corps’ Mississippi

Valley Division remanded the approved jurisdictional

determination for reconsideration by the Corps’ dis-

trict office. Pet. App. 7a, 44a. In December 2012, the

Corps issued a revised approved jurisdictional deter-

minatiou, which again concluded that the property

contains waters of the United States. Jd. at 7a-8a,

44a-102a. The revised approved jurisdictional deter-

mination explained that the property contains approx-

imately 150 acres of wetlands that are adjacent to

waters that flow directly or indirectly into traditional

navigable waters. /d. at 50a-5la. The wetlands at

issue are of “exceptional quality”—they are consid-

ered a “Rich Fen” with “high vegetative biodiversity,”

and they are “correctly given an outstanding state-

wide biodiversity significance ranking by the [State].”

Id. at 64a. After examining the effect of the wetlands

on the chemical, physical, and biological integrity of

the traditionally-navigable Red River of the North,

the Corps concluded that the wetlands have a signifi-

cant nexus with that river. /d. at 83a-100a.

Respondents’ permit application is currently pend-

ing. The State of Minnesota, which is jointly review-

ing the project with the Corps, has requested that

respondents provide certain additional information.

Because that request is outstanding, the Corps has

not yet made a decision on the permit.

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).

Pet. App. 8a, 27a. The Corps moved to dismiss the

suit, 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’

challenge to the jurisdictional determination was not

ripe. Pet. App. 8a.

The district court dismissed the suit. Pet. App.

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 process, zd. at 32a,

it “does not satisfy the second Bennett condition”

because “it does not determine [respondents’] rights

or obligations,” id. at 34a.

5. a. The court of appeals reversed. Pet. App. la-

17a. The court held that a jurisdictional determina-

tion is a reviewable “final agency action” under the

APA. I/d. at 16a-17a. In the court’s view, “the Court’s

application of its flexible final agency action standard

in Sackett” indicated that a jurisdictional determina-

tion should be considered final agency action. /d. at

da.

The court of appeals first held that the jurisdic-

tional determination satisfied Bennett’s first prong

because it “was the consummation of the Corps’ deci-

sionmaking process on the threshold issue of the

agency’s statutory authority.” Pet. App. 9a. The

court explained that the Corps’ regulatory guidance

describes an approved jurisdictional determination as

a “definitive, official determination.” Jbid. (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.” Pet. App. 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.” Jbid.

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. Pet. App. 13a (citation omitted; brackets

in original); see 5 U.S.C. 704. While acknowledging

that respondents could seek a permit and then obtain

judicial review of the Corps’ decision on their applica-

tion, the court asserted that, “as a practical matter,

the permitting option is prohibitively expensive and

futile.” Pet. App. 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, 132 S. Ct.

at 1372).

b. Judge Kelly filed a separate concurring opinion.

Pet. App. 18a-2la. She described the reviewability

issue presented here “as a close question.” Jd. at 18a.

She observed that a jurisdictional determination does

not alter the recipient’s legal obligations in the way

that the compliance order in Sackett did. Jd. at 18a-

20a. Judge Kelly concluded, however, that a jurisdic-

tional determination should be immediately reviewa-

ble to provide the landowner an opportunity, before

seeking a permit, “to show the CWA does not apply to

its land at all.” Jd. at 20a.

6. The court of appeals denied the Corps’ petition

for rehearing en banc and for panel rehearing. Pet.

App. 103a-104a.°

SUMMARY OF ARGUMENT

A Corps jurisdictional determination is not subject

to judicial review under the APA because it is not

“final agency action for which there is no other ade-

quate remedy in a court.” 5 U.S.C. 704.

A. A landowner that wishes to discharge pollutants

may seek a permit from the Corps if it wishes to en-

sure that its conduct complies with the CWA, or it

may discharge without a permit if it is sufficiently

confident that the relevant site does not contain wa-

ters of the United States. The Corps’ issuance of a

jurisdictional determination does not expand or con-

tract the landowner’s options; it simply provides addi-

tional information that the landowner may find useful

in choosing between those alternative courses of con-

duct. Jurisdictional determinations thus are one of

the many ways in which administrative agencies

respond to inquiries from regulated parties concern-

ing the application of a given legal framework to par-

ticular factual circumstances. Courts have generally

® After the court of appeals issued its decision in this case, the

Corps and the EPA issued a rule clarifying the agencies’ interpre-

tation of the scope of waters covered by the CWA. See 80 Fed.

Reg. at 37,055; see also 79 Fed. Reg. 22,188 (Apr. 21, 2014). That

rule is not relevant here because it governs jurisdictional determi-

nations issued after its effective date, 80 Fed. Reg. at 37,054,

37,073-37,074, and the jurisdictional determination at issue here

substantially predated the new rule. The Sixth Circuit has stayed

the new rule. See Jn re: EPA & Dep't of Def. Final Rule; “Clean

Water Rule: Definition of Waters of the United States,” 80 Fed.

Reg. 37,054 (June 29, 2015), at 6, No. 15-3799 (Oct. 9, 2015).

recognized both that such agency informational ef-

forts inure to the public’s benefit, and that allowing

judicial challenges to this type of guidance would

discourage agencies from responding to public inquir-

ies.

B. A jurisdictional determination is not “final

agency action” because it does not determine legal

rights or obligations, or impose legal consequences.

An affirmative jurisdictional determination states the

Corps’ conclusion that waters of the United States are

present at the relevant site, but it does not direct the

landowner to take or refrain from taking any particu-

lar action, and it does not affect the landowner’s abil-

ity to seek and obtain a permit. If the landowner

subsequently discharges pollutants and is subjected to

some form of enforcement action alleging a violation

of the CWA, the Corps’ prior jurisdictional determina-

tion will not prevent the landowner from disputing the

CWA’s applicability, will not alter the burden of proof

in the enforcement proceeding, and will not subject

the landowner to additional penalties if a violation is

found. In its lack of legal effect, a jurisdictional de-

termination is similar to various types of informal

agency guidance that courts have generally found to

be non-“final” under the APA.

As a practical matter, a landowner who receives an

affirmative jurisdictional determination may have a

greater incentive to seek a permit before discharging

pollutants than someone who has not received such a

determination. But treating that sort of practical

impact as a sufficient ground for deeming jurisdic-

tional determinations to be “final agency action”

would subvert the established understanding that

informal agency guidance is not judicially reviewable,

since the core rationale for agency informational ef-

forts is that regulated parties may give weight to the

agency's views. This Court’s decision in FTC v.

Standard Oil Co., 449 U.S. 232 (1980), which held that

a Federal Trade Commission (FTC) complaint was not

reviewable “final agency action” even though it com-

pelled the subject of the complaint to participate in an

administrative hearing, id. at 239-240, reinforces the

conclusion that a jurisdictional determination’s practi-

cal impact is an insufficient ground for finding it to be

“final.”

In particular, a jurisdictional determination is un-

like the biological opinion at issue in Bennett v. Spear,

520 U.S. 154, 157 (1997), or a discharge permit issued

by the Corps pursuant to 33 U.S.C. 1344. Under the

applicable statutory schemes, those agency actions

have operative legal effect by legitimizing—i.e., actu-

ally rendering lawful—private conduct that would

otherwise be prohibited. A Corps jurisdictional de-

termination, by contrast, reflects the agency’s as-

sessment of whether waters of the United States are

present at a particular site, but it cannot change the

actual legal status of any pollutant discharge. The

court below cited no case in which this Court has

treated as “final agency action” an agency communica-

tion like this one, which simply states the agency’s

non-binding view about the proper application of a

pre-existing legal standard to a particular factual

setting.

The court of appeals’ reliance on Sackett v. EPA,

132 S. Ct. 1367 (2012), was also misplaced. The Court

in Sackett found an EPA compliance order to be re-

viewable “final agency action.” Unlike a jurisdictional

determination, however, the compliance order di-

rected the recipient landowners to take specific ac-

tions, and it substantially increased the penalties to

which they were potentially subject. The Court in

Sackett relied on those operative legal effects, rather

than on the landowners’ practical incentive to conform

their conduct to the agency’s stated views, in holding

that the compliance order was subject to APA review.

Id. at 1371-1372.

C. Even if the Corps’ jurisdictional determination

were “final agency action,” it would not be subject to

judicial review because the statutory scheme provides

other “adequate” avenues by which the issue of CWA

coverage can be contested in court. A landowner can

seek judicial review if the Corps denies its permit

application, or issues a permit on conditions that the

applicant opposes, and the landowner can argue in the

judicial proceeding that the relevant tract does not

contain waters of the United States. A recipient of an

affirmative jurisdictional determination who elects to

proceed with discharges may also obtain judicial re-

view of the CWA coverage issue if the government

brings an enforcement proceeding or an aggrieved

private plaintiff commences a citizen suit. Since the

CWA does not require the Corps to issue jurisdiction-

al determinations at all, and nothing in the Act sug-

gests that Congress specifically anticipated that prac-

tice, Congress evidently regarded those other avenues

of judicial review as providing “adequate” opportuni-

ties to litigate disputed questions of CWA coverage.

ARGUMENT

A JURISDICTIONAL DETERMINATION IS NOT IMMEDI-

ATELY REVIEWABLE UNDER THE APA BECAUSE IT IS

NOT “FINAL AGENCY ACTION” AND BECAUSE THERE

ARE OTHER ADEQUATE PATHS TO JUDICIAL REVIEW

The Corps issues jurisdictional determinations in

response to requests from property owners, in order

to inform the owners of the Corps’ view on whether

their property falls within the CWA’s coverage. That

salutary practice gives property owners additional

information that may assist them in choosing among

their available options, but receipt of a jurisdictional

determination does not alter the recipient’s legal obli-

gations.

The court of appeals erred in concluding that the

jurisdictional determination “requires [respondents]

either to incur substantial compliance costs (the per-

mitting process), forego what they assert is lawful use

of their property, or risk substantial enforcement

penalties.” Pet. App. lla. The jurisdictional determi-

nation does not create the quandary that concerned

the court. Rather, the CWA itself requires a land-

owner to obtain a permit before discharging any pollu-

tant into waters of the United States and imposes

penalties for engaging in unpermitted discharges.

The landowner faces precisely the same set of options,

and precisely the same exposure to penalties for any

CWA violations, whether or not it has received a ju-

risdictional determination. A jurisdictional determi-

nation is therefore not “final agency action for which

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

U.S.C. 704.

A. Jurisdictional Determinations Assist Landowners To

Assess Their Rights And Obligations Under The CWA

1. The CWA requires any person to obtain a per-

mit before engaging in an unauthorized discharge of

pollutants into waters of the United States, or to face

statutory penalties for violating the Act. An entity

who wishes to discharge pollutants thus has a choice.

If it believes that the CWA may apply to waters on its

property and that a discharge permit may be re-

quired, it may seek a permit from the Corps. As part

of the permitting process, the property owner may

argue that the CWA does not apply, and it may obtain

an agency coverage determination that will be subject

to judicial review along with the agency’s ultimate

permitting decision. 33 C.F.R. 331.5(a)(2).

Alternatively, the property owner may proceed

without a permit if it believes either that the relevant

site does not contain waters of the United States

or that the discharge falls within a statutory or regu-

latory exception to the CWA’s permitting require-

ment. See pp. 9-10, supra. In a suit for judicial re-

view of an agency enforcement action, or in a judicial-

enforcement suit alleging that the landowner’s dis-

charges were unlawful, the property owner may argue

that its conduct did not violate the Act for either of

those reasons. The landowner risks being subject to

statutory penalties, however, if its view of the cover-

age question is ultimately rejected and it is found to

have violated the CWA.

2. In order to assist landowners and others in

evaluating their potential statutory obligations, the

Corps allows them to request a jurisdictional determi-

nation that provides the agency’s view on whether the

property in question contains waters of the United

States. The CWA itself does not require the Corps to

provide jurisdictional determinations to anyone. Ra-

ther, the Corps has historically provided the determi-

nations on request, either as a standalone document or

in the course of considering a permit application. See

pp. 3-6, supra; see also Memorandum 1-2.

Neither the CWA nor any Corps regulation re-

quires a landowner to request a jurisdictional deter-

mination under any circumstances. If a landowner

believes that the site of its contemplated discharges

does not contain waters of the United States, it may

proceed with those discharges without first requesting

or receiving confirmation that the Corps shares that

view. A landowner also may apply for a permit with-

out first requesting a jurisdictional determination.

A landowner who procures a jurisdictional deter-

mination, however, has the advantage of knowing the

Corps’ current, considered view as to whether there

are waters of the United States on the landowner’s

property. The landowner can take that additional

information into account in assessing the relative

advantages and disadvantages of the options available

to it. If the jurisdictional determination states the

Corps’ conclusion that waters of the United States are

present at the relevant site, but the landowner disa-

grees with that assessment, the landowner is not re-

quired to conform its conduct to the agency’s view. If

the landowner instead proceeds to discharge pollu-

tants without a permit, and the government commenc-

es some form of enforcement action, the dispositive

question will be whether the landowner’s conduct

violated the Act, not whether it was consistent with

the jurisdictional determination. In such a proceed-

ing, the landowner’s prior receipt of a jurisdictional

determination likewise will not increase its exposure

to statutory penalties if a violation is ultimately found

to have occurred. See Part B, infra. The frequency

with which jurisdictional determinations are request-

ed and received (the Corps issues tens of thousands of

jurisdictional determinations every year, see Regula-

tory) attests to the usefulness of that mechanism to

persons contemplating pollutant discharges.

Jurisdictional determinations are thus one example

of the salutary administrative practice of responding

to inquiries from potentially regulated parties con-

cerning the application of a given legal framework to

particular factual circumstances. See American Fed’n

of Gov't Emps., AFL-CIO v. O’Connor, 747 F.2d 748,

754 (D.C. Cir. 1984) (R.B. Ginsburg, J.) (describing

such actions as a “valuable public service”), cert. de-

nied, 474 U.S. 909 (1985); National Automatic Laun-

dry & Cleaning Council v. Shultz, 443 F.2d 689, 699

(D.C. Cir. 1971) (“This technique of apprising persons

informally as to their rights and liabilities has been

termed an excellent practice in administrative proce-

dure.”) (citation and internal quotation marks omit-

ted). Courts have generally been reluctant to hold

that such responses to public inquiries are immediate-

ly reviewable. See O’Connor, 747 F.2d at 753-754; see

also Holistic Candlers & Consumers Ass’n v. FDA,

664 F.3d 940, 941-946 (D.C. Cir.) (canvassing cases),

cert. denied, 133 S. Ct. 497 (2012); Air Brake Sys.,

Inc. v. Mineta, 357 F.3d 632, 644 (6th Cir. 2004) (Sut-

ton, J.) (counsel letter requested by regulated party

was not final agency action); pp. 33-35, infra.

To be sure, a party who disagrees with the agency’s

view might prefer to obtain a judicial determination of

that party’s rights and obligations immediately upon

learning of the agency’s opinion. But where (as here)

the agency’s expression of its views does not affect the

entity’s legal obligations or increase the penalties to

which it is potentially subject, the entity’s disagree-

ment with the agency does not in itself justify imme-

diate judicial review. Cf. National Park Hospitality

Ass'n v. Department of the Interior, 538 U.S. 803, 811

(2003) (rejecting argument that “mere uncertainty as

to the validity of a legal rule constitutes a hardship for

purposes of the ripeness analysis” because “courts

would soon be overwhelmed with requests for what

essentially would be advisory opinions”). Courts have

also recognized that agency informational efforts

inure to the public’s benefit, and that “[t]o permit

suits for declaratory judgments upon mere informal,

advisory, administrative opinions might well discour-

age the practice of giving such opinions, with a net

loss of far greater proportions to the average citizen

than any possible gain which could accrue.” Shultz,

443 F.2d at 699 (citation omitted).

That is not an abstract concern here. Significant

agency resources are necessary to perform the scien-

tific and technical analysis required to produce the

tens of thousands of jurisdictional determinations

requested annually. Allowing immediate judicial re-

view of each of those determinations could impose a

substantial further strain on the Corps’ limited re-

sources. Particularly because nothing in the Act or

the Corps’ regulations requires the Corps to issue

jurisdictional determinations, the Corps might recon-

sider the practice, or at least revisit its willingness to

provide an approved jurisdictional determination to

anyone who requests it. See Belle Co. v. United States

Army Corps of Eng’rs, 761 F.3d 383, 394 (5th Cir.

2014) (immediate judicial review would “disincentivize

the Corps from providing [jurisdictional determina-

tions],” thereby “undermin[ing] the system through

which property owners can ascertain their rights and

evaluate their options”), 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 pend-

ing, No. 14-493 (filed Apr. 16, 2015).

B. A Jurisdictional Determination Is Not “Final Agency

Action” Because It Does Not Determine Legal Rights

Or Obligations, Or Impose Legal Consequences

The APA authorizes judicial review of “final agency

action for which there is no other adequate remedy

in a court.” 5 U.S.C. 704. Two conditions must be

met for agency action to be “final.” Bennett v. Spear,

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

the consummation of the agency’s decisionmaking

process—it must not be of a merely tentative or inter-

locutory nature. And second, the action must be one

by which rights or obligations have been determined,

or from which legal consequences will flow.” /d.

at 177-178 (citations and internal quotation marks

omitted).

An approved jurisdictional determination for which

administrative appeals have been completed may

represent the consummation of the Corps’ deci-

sionmaking with respect to the presence of waters of

the United States on particular property. The deter-

mination reflects the agency’s official view, and it will

remain in effect for five years unless conditions

change or new information comes to light. See p. 5,

supra; see also 33 C.F.R. 331.2, Pt. 331, App. C;

RGL 05-02 11. To be sure, if the recipient of an af-

firmative jurisdictional determination subsequently

discharges pollutants at the relevant site, the

decision whether to initiate various types of enforce-

ment proceedings might involve officials at other

agencies (e.g., EPA officials for an administrative

compliance order, or Justice Department attorneys

for a judicial-enforcement suit). Those officials might

seek to confirm the presence of covered waters before

commencing enforcement actions. But the issuance of

an approved jurisdictional determination marks the

culmination of the distinct process by which the Corps

informs a landowner whether the Corps believes that

covered waters are present on a specified tract.

The jurisdictional determination does not, however,

satisfy Bennett’s second prong: it does not impose

legal consequences or alter the recipient’s legal obli-

gations in any way. It does not contain any directives;

it does not alter the landowner’s exposure to penalties

for violating the Act; and it does not change the

standard of review that otherwise would govern any

challenge to the agencies’ final permitting or enforce-

ment decisions. In holding to the contrary, the court

of appeals conflated an affirmative jurisdictional de-

termination’s possible practical effect—namely, the

increased incentive to obtain a permit—with the legal

effects that this Court’s decisions require.*®

* In so concluding, the court of appeals departed from decisions

of the Fifth and Ninth Circuits. In Belle, the Fifth Circuit held

that a jurisdictional determination is not final agency action, and

that this Court’s decision in Sackett v. EPA, 132 S. Ct. 1367 (2012),

does not require a contrary conclusion. Belle, 761 F.3d at 393-394.

The Ninth Circuit, in its 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), similarly held that a

jurisdictional determination is not final. 7d. at 589.

1. The CWA itself, not the jurisdictional determina-

tion, imposes legal obligations on respondents

An affirmative jurisdictional determination informs

the landowner of the Corps’ view that a particular

property contains “waters of the United States” and is

therefore subject to the CWA’s ban on unauthorized

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

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

addresses only the presence or absence of waters of

the United States on the property. It does not an-

nounce any conclusion about whether the landowner’s

planned activities would require a permit, or whether

the landowner’s past activities, if any, have violated

the Act. Nor does it direct the landowner to take (or

refrain from taking) any action. See Pet. App. 46a-

47a.

a. A jurisdictional determination does not alter a

property owner’s obligation, if any, to obtain a permit.

If the property in fact contains waters of the United

States, the CWA requires the landowner to obtain

authorization under the Act and its implementing

regulations before discharging pollutants into those

waters, whether or not the landowner has requested

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

1311(a), 1344; see 33 U.S.C. 1342 (2012 & Supp. II

2014); 33 C.F.R. 331.2. Conversely, if the property

does not contain waters of the United States, but the

Corps issues a jurisdictional determination that incor-

rectly finds covered waters to be present, pollutant

discharges at the site remain lawful despite the Corps’

expressed view.

A jurisdictional determination also does not ad-

dress whether the property owner’s planned activities

would require a permit. See 33 C.F.R. 331.2 (“[Juris-

dictional determinations] do not include determina-

tions that a particular activity requires a * * *

permit.”). Rather, an approved jurisdictional deter-

mination focuses exclusively on the conditions on the

property and the scientific and legal evaluation neces-

sary to ascertain the presence of waters of the

United States. See, eg., Pet. App. 48a-102a. The

Corps’ statement of its conclusion that the property

contains waters regulated by the CWA does not give

rise to any necessary inference about the need for a

permit, as some discharges into covered waters do not

require a permit. See, e.g., 33 U.S.C. 1344(f). The

court of appeals was therefore incorrect in asserting

that the jurisdictional determination “adversely af-

fects [respondents’) right to use their property in

conducting a lawful business activity.” Pet. App. 13a.

Receiving a jurisdictional determination also does

not affect the landowner’s ability to obtain a permit.

See 33 C.F.R. Pts. 320, 331 (describing criteria and

procedures for granting permits without reference to

whether a landowner has received a jurisdictional

determination). A landowner may request a jurisdic-

tional determination either before applying for a per-

mit or during the permitting process. See RGL 08-02

1 2. If the landowner seeks and receives a jurisdic-

tional determination before applying for a permit, the

Corps generally will not revisit CWA coverage as part

of the permitting process except on the basis of new

information. If the landowner applies for a permit

without first obtaining a jurisdictional determination,

and then places CWA coverage in issue during the

permitting process, the Corps will issue a jurisdiction-

al determination in response. Whichever way a land-

owner chooses to raise questions concerning CWA

coverage, the Corps will verify coverage through

a jurisdictional determination. If the owner subse-

quently seeks, or continues to seek, a permit, the

Corps will then consider whether, and on what condi-

tions, the discharge should be authorized.’

After exhausting administrative remedies, the

landowner may obtain judicial review of the permit-

ting decision, including any predicate jurisdictional

determination, if the permit is denied or the applicant

declines a proffered permit. See 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).

b. An affirmative jurisdictional determination does

not expand or alter the range of enforcement mecha-

nisms available to the agencies charged with adminis-

tering the CWA.

Whether or not the Corps has previously issued a

jurisdictional determination informing the landowner

that a particular tract contains waters of the

United States, the EPA may issue an administrative

compliance order (of the sort at issue in Sackett v.

EPA, 132 S. Ct. 1367 (2012)), or it may institute an

7 When the Corps makes a permit decision, the permit applicant

can then administratively appeal the permit denial or the declined

permit to the Corps’ division engineer. 33 C.F.R. Pt. 331. In such

an appeal, the applicant can again argue that the relevant site does

not contain waters of the United States, even if the applicant

previously (and unsuccessfully) appealed the standalone jurisdic-

tional determination. The division engineer, who decides the

appeal, reviews the question of CWA coverage again. 33 C.F.R.

331.5(aX(2) (“The reasons for appealing a permit denial or a de-

clined permit may include jurisdiction issues, whether or not a

previous approved [jurisdictional determination] was appealed.”).

administrative penalty proceeding and impose a

penalty. 33 U.S.C. 1319(a) and (g). Such enforcement

actions are necessarily predicated on the EPA’s

assessment that the CWA applies to the waters

in question, see RGL 08-02 1 4.e; but the fact that

the Corps has previously expressed that view in

a jurisdictional determination does not affect the

landowner’s rights in an administrative-enforcement

proceeding, see 33 U.S.C. 1319(a) and (g); Rochester

Tel. Corp. v. United States, 307 U.S. 125, 129-130

(1939). The landowner’s exposure to administrative

penalties likewise does not vary based on whether it

has previously received an affirmative jurisdictional

determination. 33 U.S.C. 1319(g)(2).

Both types of administrative action afford the land-

owner the opportunity to obtain judicial review of the

agency's underlying conclusion that the property

contains waters of the United States. See 33 U.S.C.

1319(g)(8) (providing for judicial review of administra-

tive penalty decision); Sackett, 1382 S. Ct. at 1871-1372

(compliance orders issued under 33 U.S.C. 1319(a) are

reviewable under the APA); see also 5 U.S.C.

706(2)(A). In any such judicial-review proceedings,

the EPA’s coverage determination would be reviewed

under the same arbitrary-and-capricious standard as

the EPA’s determination that the property owner had

violated the CWA and that a particular penalty was

appropriate. See 33 U.S.C. 1319(g)(8); see also, e.g.,

Kelly v. United States Envtl. Prot. Agency, 203 F.3d

519, 523 (7th Cir. 2000). That standard of review

would apply whether or not the Corps had issued an

affirmative jurisdictional determination before the

discharges occurred.

Alternatively, the United States may commence a

judicial-enforcement action. In such an action, the

United States bears the burden of establishing, inter

alia, that the defendant’s discharges occurred in wa-

ters of the United States. See 33 U.S.C. 1319(b); see

also, e.g., United States v. Cundiff, 555 F.3d 200, 213

(6th Cir.) (government “must prove that (1) a person

(2) discharged a pollutant (3) from a point source

(4) into waters of the United States (5) without a

permit”), cert. denied, 558 U.S. 818 (2009). That

standard of proof applies whether or not the Corps

has previously issued a jurisdictional determination

concerning the site at issue. See Fairbanks N. Star

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

594-595 (9th Cir. 2008) (“[W]Je would not give the gov-

ernment’s position that CWA regulatory jurisdiction

exists any particular deference simply because the

Corps’ views on the matter were formulated in the

context of an approved jurisdictional determination

rather than, for example, a permit application or en-

forcement proceeding.”), cert. denied, 557 U.S. 919

(2009) (Fairbanks).

If the landowner is ultimately found liable in a

judicial-enforcement proceeding, it will not face any

increased exposure to penalties by virtue of the prior

jurisdicuonal determination. Because a jurisdictional

determination contains no directives that could be

violated, receipt of a jurisdictional determination

cannot trigger any sanctions for violating the deter-

mination itself. Nor does the jurisdictional determi-

nation alter the landowner’s legal exposure to sanc-

tions under the CWA. See 33 U.S.C. 1319(d) (setting

maximum per-day penalty without regard to prior

receipt of a jurisdictional determination); 74 Fed. Reg.

627 (Jan. 7, 2009) (same).

The court of appeals was therefore incorrect in

stating that a jurisdictional determination increases

“the penalties [respondents] would risk if they chose

to begin mining without a permit” by exposing the

landowner to “substantial criminal monetary penalties

and even imprisonment for a knowing CWA violation.”

Pet. App. 15a. The CWA does provide that a court, in

assessing an appropriate civil penalty for a violation,

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

comply with the CWA’s requirements. 33 U.S.C.

1319(d). The statute also imposes criminal penalties

for knowing violations of the CWA, 33 U.S.C.

1319(c)(2). A landowner’s receipt of a jurisdictional

determination—and its consequent knowledge that

the agency believes the CWA applies—could be

offered as evidence of the owner’s knowledge of the

CWA’s applicability. But the civil-penalty and crimin-

al provisions do not mention, much less assign any

particular evidentiary weight to, the Corps’ prior

issuance of a jurisdictional determination. The pos-

sibility that a landowner’s receipt of a jurisdictional

determination might be given evidentiary weight in

some future proceeding is therefore contingent—not

the sort of concrete legal consequence necessary to

render the action final. See Fairbanks, 543 F.3d

at 594-595. In any event, the potential knowledge-

conferring aspect of a jurisdictional determination

does not distinguish it from any number of informal

statements that agencies offer in order to assist

regulated entities in structuring their activities—or,

for that matter, a private consultant’s report, which

likewise could be offered as evidence that a regulated

party knew its conduct to be unlawful.

c. In its lack of legal effect, an affirmative jurisdic-

tional determination is similar to informal agency

opinion letters and other statements, often issued in

response to inquiries from the public, communicating

the agency’s views about the proper application of

relevant statutory provisions to particular factual

scenarios. Courts have generally held that those

actions are not “final” under the APA because they

have “no direct, binding effect on [regulated parties]

and * * * no legal consequences * * * by virtue of

the deference courts might give to them.” Air Brake

Sys., 357 F.3d at 644 (counsel letter requested by

regulated party was not final); see, e.g., Holistic Can-

dlers, 664 F.3d at 941-942 (FDA warning letters ex-

pressing agency’s view that entity must obtain FDA

approval before selling product were not final because

they did not compel any action); Florida Power &

Light Co. v. EPA, 145 F.3d 1414, 1419 (D.C. Cir. 1998)

(EPA letters and statement of EPA’s understanding

of its statutory authority were not final because they

had no legal effect on regulated party); USAA Fed.

Sav. Bank v. McLaughlin, 849 F.2d 1505, 1508-1510

(D.C. Cir. 1988) (letter stating extent of regulatory

jurisdiction, in response to inquiry, was not reviewa-

ble); O’Connor, 747 F.2d at 755-757.

To be sure, the agency process that culminates in

an approved jurisdictional determination is more

formal and structured than is the case with many

more ad hoc agen¢y communications. See pp. 3-5,

supra. That feature of the jurisdictional determina-

tion is relevant to Bennett’s first prong, since it sug-

gests that the determination is the consummation of

the Corps’ decisionmaking process with respect to

CWA coverage of the relevant site. But to be subject

to immediate review under the APA, the jurisdictional

determination must also satisfy Bennett’s second

prong—it must determine legal rights or impose legal

consequences. See Air Brake Sys., 357 F.3d at 641

(“To say that a legal interpretation is final because it

is not subject to further review within the agency,

however, is not to say that it is ‘final’ in the sense that

[Section 704] of the APA requires it to be.”). In that

regard, a jurisdictional determination is no different

from the innumerable opinions that agencies offer to

assist regulated entities in understanding the obliga-

tions imposed by the governing statute.* See, ¢.9.,

* The Corps’ regulations state that a jurisdictional determination

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

That provision does not purport to address whether a jurisdiction-

al determination is “final agency action” under the APA. Rather,

it clarifies that, because the Corps has “authorized its district

engineers”—as opposed to higher-ranking Corps officials—to

issue jurisdictional determinations, “the public can rely on” a

district engineer’s “determination” as reflecting the Corps’ official

view on CWA coverage. 51 Fed. Reg. 41,207, 41,220 (Nov. 13,

1986). In a later rulemaking, the Corps confirmed that it did not

regard jurisdictional determinations as “final” for purposes of

judicial review, stating that in its view, a challenge to a jurisdic-

tional determination would not be ripe “until a landowner who

disagrees with a [jurisdictional determination] has gone through

the permitting process.” 65 Fed. Reg. 16,488 (Mar. 28, 2000). In

any event, even if the Corps had characterized a jurisdictional

determination as final for APA purposes, “[wJhether an adminis-

trative decision is final is determined not by the administrative

agency's characterization of its action, but rather by a realistic

assessment of the nature and effect of the order sought to be

reviewed.” Adenariwo v. Federal Mar. Comm'n, No. 14-1044,

2015 WL 8744623, at *3 (D.C. Cir. Dec. 15, 2015) (citation and

internal quotation marks omitted); Ocean Cnty. Landfill Corp. v.

Independent Equip. Dealers Ass’n v. EPA, 372 F.3d

420, 427 (D.C. Cir. 2004) (Roberts, J.) (EPA letter

articulating legal interpretation represented consum-

mation of agency decisionmaking process, but it was

not final because it “was purely informational in na-

ture; it imposed no obligations and denied no relief”).

2. Although an affirmative jurisdictional determina-

tion may have a practical effect on the recipient's

assessment of the advantages and disadvantages of

alternative courses of conduct, it does not have the

legal effect necessary for final agency action

a. 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. Pet. App. 1la-13a.

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

receives an affirmative jurisdictional determination

may have a greater incentive to seek a permit than

someone who has not received such a determination.

But that incentive arises solely from the additional

information that a jurisdictional determination con-

veys to the landowner about the agency’s scientific

and legal analysis and its ultimate view of the CWA’s

coverage. When an agency communication does not

affect the legal obligations or sanctions to which the

recipient is subject, that sort of practical effect is not

sufficient to render the communication final agency

action. See National Ass’n of Home Builders v. Nor-

ton, 415 F.3d 8, 14-15 (D.C. Cir. 2005) (incentive to

comply voluntarily with agency’s guidance concerning

United States Envtl. Prot. Agency, 631 F 3d 652, 655 (3d Cir. 2011)

(same).

underlying statutory obligation is insufficient to es-

tablish legal consequences under Bennett).

Indeed, whenever an agency endeavors to provide

the regulated public with more information regarding

the agency’s interpretation of a governing statute, a

potential practical consequence of the agency’s efforts

is that some parties may feel constrained to conduct

themselves in accordance with the agency’s stated

view despite their disagreement with it. Yet the

courts have not traditionally viewed administrative

efforts to inform the public about statutory require-

ments as coercive. See, e.g., National Ass’n of Home

Builders, 415 F.3d at 14-15; Florida Power & Light

Co., 145 F.3d at 1419. To the contrary, courts have

understood such actions to be a “valuable public ser-

vice” that enables private parties to make more in-

formed decisions about their best course of action in

light of statutory requirements. O’Connor, 747 F.2d

at 754.

Jurisdictional determinations thus do not inhibit

private choice; they facilitate it. When a property

owner discharges pollutants into waters of the United

States, its conduct violates the CWA unless the dis-

charge either has been authorized, generally by a

permit, or falls within a statutory or regulatory ex-

emption. That is so whether or not the Corps has

previously issued an affirmative jurisdictional deter-

mination or otherwise communicated its view that

covered waters are present. An affirmative jurisdic-

tional determination simply gives the property owner

more information on which to base its own assessment

of its statutory obligations.

That additional information may influence the

landowner’s choice among alternative courses of con-

duct. But to treat that possible influence as sufficient

to render the jurisdictional determination immediate-

ly reviewable would depart from the longstanding

judicial encouragement of administrative efforts to aid

the public in understanding statutory requirements.

Agency informational statements would serve no use-

ful purpose if the persons who requested those state-

ments gave them no weight in choosing among alter-

native courses of conduct. If that potential impact

rendered such statements final agency action, the

Corps—and other agencies with similar practices—

would have to consider whether to continue “to devote

the limited resources of [the] office to this work.”

O’Connor, 747 F.2d at 754.

b. This Court’s precedents concerning administra-

tive complaints reinforce the conclusion that any prac-

tical effect arising from a jurisdictional determination

does not justify judicial review. Even when an agency

action requires a party to participate in an agency

proceeding, the resulting practical burden is not suffi-

cient by itself to render the action final.

In FTC v. Standard Oil Co., 449 U.S. 232 (1980),

the Court held that an FTC complaint instituting an

administrative hearing to determine whether the

regulated party had violated the law was not final

agency action. /d. at 239-240. The Court rejected the

argument that the obligation to participate in the

hearing was a legal consequence sufficient to render

the action fina! The Court explained that, although

the “burden” of participating in the proceeding “cer-

tainly is substantial, it is different in kind and legal

effect from the burdens attending what heretofore has

been considered to be final agency action.” /d. at 242;

see, e.g., Aluminum Co. of Am. v. United States, 790

F.2d 938, 941 «D.C. Cir. 1986) (Scalia, J.) (“It is firmly

established that agency action is not final merely

because it has the effect of requiring a party to partic-

ipate in an agency proceeding.”); see also CSX

Transp., Inc. v. Surface Transp. Bd., 774 F.3d 25, 30

(D.C. Cir. 2014) (same). That is so even when the

regulated party argues that the agency lacks statuto-

ry authority to conduct the proceeding at all. See

Aluminum Co., 790 F.2d at 942 (“Nor does the claim

that assumption of original jurisdiction is beyond the

[Interstate Commerce Commission’s] statutory au-

thority make any difference.”). If an agency assertion

of statutory authority that requires a regulated party

to shoulder the potentially “substantial” practical

burden of participating in an agency proceeding does

not impose legal consequences, it follows a fortiori

that an affirmative jurisdictional determination, which

may encourage permit applications but does not re-

quire the recipient to do anything, is not final.

ec. The contrast between this case and Bennett

is instructive. In Bennett, the Court considered a

“(bjiological [o}pinion” that was prepared by one fed-

eral agency (the Fish and Wildlife Service (Service))

and that authorized another agency (the “action agen-

cy”) to “take” endangered species “if (but only if) [the

action agency] complie[d] with” terms and conditions

prescribed in the biological opinion. 520 U.S. at 178.

The biological opinion thus had the practical effect of

“a permit authorizing the action agency to ‘take’ the

endangered or threatened species,” notwithstanding

the general prohibition on taking such species im-

posed by the Endangered Species Act of 1973 (ESA),

16 U.S.C. 1531 et seq., so long as the action agency

abided by the specified terms and conditions. 520 U.S.

at 170. The Court held that the biological opinion was

“final agency action” because it “alter[ed] the legal

regime” by establishing the conditions upon which the

action agency could lawfully “take” endangered spe-

cies. Id. at 178.

The biological opinion in Bennett was found to be

“final agency action” because its terms and conditions

actually established the line of demarcation between

lawful and unlawful action-agency conduct. Unlike a

Corps jurisdictional determination, the biological

opinion did not simply provide the Service’s view as to

what conduct the relevant statute independently al-

lowed or prohibited. Rather, under the pertinent ESA

provisions, the actual legality of any takings of endan-

gered species that might occur during the relevant

action-agency project turned on whether the action

agency had complied with the terms and conditions set

forth in the biological opinion. See 520 U.S. at 170

(explaining that, under the ESA provisions that ad-

dress inter-agency consultation, “[a)ny taking that is

in compliance with these terms and conditions ‘shall

not be considered to be a prohibited taking of the

species concerned’”) (quoting 16 U.S.C. 1536(0)(2)).

By legitimizing takings that would otherwise have

been unlawful, the Service’s biological opinion had an

operative legal effect that the Corps’ jurisdictional

determinations lack.

The Court in Bennett described the Service’s bio-

logical opinion as “a permit authorizing the action

agency to ‘take’ the endangered or threatened species

so long as it respects the Service’s ‘terms and cendi-

tions.”"” 520 U.S. at 170. As that language suggests,

the biological opinion at issue in Bennett is more per-

suasively analogized to a CWA discharge permit than

to a Corps jurisdictional determination. If a CWA

permit applicant believes that the permit conditions

fashioned by the Corps are unreasonably onerous, it

may file suit (after exhausting administrative reme-

dies) under the APA. Unlike a jurisdictional determi-

nation, a CWA permit does not simply express the

Corps’ opinion about the proper application of some

other legal rule. Rather, a CWA permit is “final agen-

cy action” because the actual legality of pollutant

discharges depends on whether the permittee has

complied with its terms. See 33 U.S.C. 1311(a),

1344(p). Because “[cjompliance with a permit issued”

by the Corps under Section 1344 “shall be deemed

compliance * * * with,” inter alia, Section 1311’s

restrictions on pollutant discharges, 33 U.S.C. 1344(p),

the effect of a Corps permit is to render lawful con-

duct that the Act would otherwise prohibit.

Just as an affirmative jurisdictional determination

does not impose any independent legal barrier to

pollutant discharges, a negative jurisdictional deter-

mination does not have the legal effect of a permit

issued by the Corps pursuant to 33 U.S.C. 1344. Ifa

particular site in fact contains waters of the United

States, but the Corps incorrectly concludes that it

does not, unpermitted pollutant discharges into those

waters remain unlawful (assuming that no exception

to the statutory prohibition applies), even if the Corps’

view is reflected in an approved jurisdictional deter-

mination. To be sure, the general practice of the fed-

eral agencies that enforce the CWA has been to re-

frain from commencing enforcement actions under

these circumstances while a negative jurisdictional

determination remains in effect. Unlike a CWA per-

mit, however, a negative jurisdictional determination

does not cause otherwise-unlawful discharges to be

lawful, and it does not insulate the landowner from

potential liability in a citizen suit brought by an ag-

grieved private plaintiff. See 33 U.S.C. 1365(a)(1) and

(f).

d. The other decisions on which the court of

appeals relied (Pet. App. lla-13a) are likewise

distinguishable. In Abbott Laboratories v. Gardner,

387 U.S. 136 (1967), the Court held that regulations

setting forth prescription-drug-labeling requirements

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

violations of them carry heavy criminal and civil

sanctions.” /d. at 152. Similarly, the agency

regulations at issue in Columbia Broadcasting

System, Inc. v. United States, 316 U.S. 407 (1942), had

the “force of law” because they “require[d] [the

Federal Communications Commission] to reject and

authorize[d] it to cancel licenses on the grounds

specified in the regulations without more.” /d. at 418.

And in Frozen Food Express v. United States, 351

U.S. 40 (1956), the Court held that a generally-

applicable order determining which commodities fell

within a statutory “agricultural” exemption to a

permitting requirement was final because the order

established the generally-applicable rule that the

agency would apply in determining whether the

statute had been violated. Jd. at 41-45. The court

below cited no case in which this Court has treated as

“final agency action” an agency communication like

this one, which simply states the agency’s non-binding

view about the proper application of a pre-existing

legal standard to a particular factual setting.

3. Sackett does not suggest that a Corps jurisdictional

determination is final agency action

The court of appeals construed this Court’s deci-

sion in Sackett as supporting the conclusion that a

jurisdictional determination is immediately reviewa-

ble. 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 the

Sacketts likely experienced when they were 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

compliance order materially increased both the land-

owners’ legal obligations and the penalties to which

they were potentially subject. 132 S. Ct. at 1371-1372.

A jurisdictional determination does not have any simi-

lar legal effect.

The CWA provides that, when the EPA finds “that

any person is in violation of” enumerated provisions

of the Act, the agency may “issue an [administrative

compliance] order requiring such person to com-

ply with such section or requirement.” 33 U.S.C.

1319(a)(3). A compliance order is thus a component of

the CWA’s enforcement framework, designed to “ob-

tain quick remediation” of a CWA violation found by

the agency. Sackett, 132 S. Ct. at 1374. As such, a

compliance order directs the recipient to bring itself

into compliance, and it exposes the recipient to addi-

tional penalties—beyond those that may be imposed

for the statutory violation itself—if the recipient does

not comply with the order. Jd. at 1371-1372.

The Sackett Court relied on those aspects of the

compliance order in holding that the order was “final

agency action.” The Court explained that the 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 their property and relevant documen-

tation. 132 S. Ct. at 1371 (citation omitted). Those

obligations arose “[b]y reason of the [compliance]

order,” not as a result of the CWA itself. Jbid. The

Sackett Court further concluded that “‘legal conse-

quences flow’ from issuance of the [compliance]

order” because a landowner can be liable for penalties

for violating the compliance order, in addition to pen-

alties for violating the Act. /bid. (quoting Bennett,

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

omitted). The compliance order also “severely lim-

it{ed) 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

such an order. /d. at 1372.

A jurisdictional determination possesses none of

the characteristics that were dispositive in Sackett. It

is not a statutory enforcement tool through which the

agency directs the recipient to alter its conduct. A

jurisdictional determination is instead an agency crea-

tion, designed to assist regulated entities who seek the

agency’s opinion. It does not express any view about

the lawfulness of the recipient’s proposed activities,

much less find a violation of the statute, and it does

not instruct the recipient to take any action whatsoev-

er. If the recipient of an affirmative jurisdictional

determination later discharges fill at the relevant site

and is ultimately found to have violated the CWA, its

prior receipt of the jurisdictional determination does

not expose it to any additional penalties beyond those

that the CWA establishes for violating the statute. 33

U.S.C. 1319(d). A jurisdictional determination also

has no impact on the recipient’s ability to seek and

obtain a permit, since the regulations limiting permits

following a compliance order do not accord the same

effect to jurisdictional determinations. See 33 C.F.R.

326.3(e)(1)(iv).

The Court in Sackett also expressed concern that

immediate judicial review of the compliance order was

necessary to prevent “the strong-arming of regulated

parties.” 132 S. Ct. at 1374. That concern arose large-

ly from the fact that the compliance order exposed the

recipient to double the statutory penalties for each

day the asserted violation persisted—yet, absent

immediate review, the EPA would retain sole control

over the timing of a judicial-enforcement action. /d. at

1372; id. at 1375 (Alito, J., concurring). A jurisdic-

tional determination raises no comparable concerns.

A recipient of a jurisdictional determination has the

same legal and practical options the day it receives the

determination as it had the day before; it simply has

additional information to assist it in choosing among

those options. Because jurisdictional determinations

(unlike EPA compliance orders) do not direct the

recipient to take or refrain from taking any action,

and because they are typically provided only to per-

sons who request them, they are not easily used to

“strong-arm[]” regulated parties. /d. at 1374.

C. Tnere Are Adequate Alternative Opportunities For

Respondents To Obtain Judicial Resolution Of The

Issue Of CWA Coverage

Even if a jurisdictional determination satisfied

Bennett’s two-part test for identifying “final agency

action,” APA review would be available only if there is

“no other adequate [judicial] remedy.” 5 U.S.C. 704.

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

13a-16a, respondents possess adequate alternative

opportunities to argue in court that their property

does not contain CWA-protected waters.

1. The CWA contemplates that the permitting pro-

cess will provide the primary avenue of obtaining

judicial review of a jurisdictional determination.’ The

CWA establishes a comprehensive permit system that

provides a “means of achieving and enforcing” the

Act’s discharge limitations. EPA v. California, 426

U.S. 200, 205 (1976). The Act is therefore designed to

encourage regulated parties to seek permits, and to

obtain judicial review of permitting decisions if they

are dissatisfied with the disposition of their permit

applications, before they discharge pollutants.

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 argue in court that any waters on its proper-

ty are not covered by the Act. See 33 U.S.C. 1344(a);

33 C.F.R. 331.10, 331.12; see also Precon 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

* In Sackett, the Court concluded that the Corps’ permitting

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

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

circumstance 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.

route. See, e.g., Carabell, 391 F.3d at 706-707. And if

the Corps grants a permit on conditions that satisfy

the applicant, judicial review of the threshold jurisdic-

tional determination is unnecessary.

The court of appeals held that the permitting pro-

cess is inadequate because it is “prohibitively expen-

sive” and time-consuming. Pet. App. 14a. That rea-

soning ignores the statutory framework that Congress

established. The CWA itself contains no reference

to standalone jurisdictional determinations. Rather,

Congress contemplated that the Corps would ordinari-

ly determine CWA coverage as part of the permitting

process, and that the property owner would obtain any

necessary judicial review of that determination at the

conclusion of that process. Having “considered the

costs” of the permitting system, Congress evidently

determined that the permitting process would provide

an adequate avenue for obtaining review of the Corps’

coverage determination as well as its decision on the

permit. West Va. Highlands Conservancy, Inc. v.

Huffman, 625 F.3d 159, 170 (4th Cir. 2010) (explaining

that Congress decided, after weighing costs and bene-

fits, that “a permitting scheme is the crucial instru-

ment for protecting natural resources”). In finding

the permitting process to be an inadequate avenue of

judicial review, based solely on its own view that the

attendant costs make that approach infeasible, the

court of appeals improperly second-guessed Con-

gress’s conclusions.

In any event, the court of appeals misperceived the

burden of seeking a permit. The court relied on the

statement in the plurality opinion in Rapanos v.

United States, 547 U.S. 715 (2006), that “the average

applicant for an individual Corps permit ‘spends 788

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

App. 14a (citation omitted); see Rapanos, 547 U.S. at

721 (plurality opinion). Those figures originated in a

2002 article that examined 103 individual- and

general-permit applications. See David Sunding &

David Zilberman, The Economics of Environmental

Regulation by Licensing: An Assessment of Recent

Changes to the Wetland Permitting Process, 42 Nat.

Resources J. 59, 73-74 (Sunding). For several

reasons, the court of appeals’ reliance on the Sunding

figures was misplaced.

As an initial matter, individual permits are the ex-

ception, not the rule, especially for the smaller pro-

jects likely to be undertaken by individuals or small

businesses. See pp. 6-7, supra. The Corps resolves

the vast majority of permit applications—between

90% and 95% every year—by verifying that the pro-

posed discharge falls within the scope of an existing

general permit. Corps, Inst. for Water Res.,

The Mitigation Rule Retrospective: A Review of the

2008 Regulations Governing Compensatory Mitiga-

tion for Losses of Aquatic Resources 25 (Oct. 2015),

http://www.iwr.usace.army.mil/Portals/70/docs/iwrreports/

2015-R-03.pdf (Retrospective).

The general-permitting process is streamlined and

requires significantly less of the applicant than the

individual-permitting process. In 2015, for instance,

the Corps reported that it issued 86% of general-

permit verifications within 60 days after receiving a

completed application.” Regulatory; cf. 77 Fed. Reg.

‘© The Sunding article asserted that the average general-permit

verification is granted in 313 days, but that figure included the

time the applicant takes to prepare the application for submission

and to complete it after submission. Sunding 75. The Sunding

at 10,268 (in 2010, average processing time was 32

days). And because general-permit applications

typically contemplate a smaller impact and do not

require the applicant to analyze alternate plans, the

application process is less expensive than for an

individual permit. While reliable and representative

cost data are difficult to obtain—applicants do not

report their costs to the agency, and costs will

necessarily vary based on the nature of the project

and choices made by the app!icant—the Corps esti-

mated in 2001 that the average applicant spent $3000

to $10,000 to obtain a general-permit verification.

Corps, Inst. for Water Res., Cost Analysis for the

2000 Issuance and Modification of Nationwide

Permits 14 (Aug. 2001) (Cost Analysis).'' The Sun-

ding article asserted, based on a sample of fewer than

100 general-permit applications (out of the tens of

thousands each year), that the average cost of ver-

ifying the coverage of a general permit for that set

was $28,915. Sunding 74.

With respect to the individual-permit data on which

the court of appeals relied, there is reason to doubt

that it is representative of the broad range of

individual-permit applications. The Sunding article

does not set forth the raw data on which its estimates

were based, but it appears to have been drawn from

article asserted that the Corps processes general-permit verifica-

tions within 16 days after receiving a completed application. /bid.

'! That estimate pertains to permit applications that affect three

or fewer acres of waters of the United States, and it was “obtained

through informal interviews with wetland permitting consultants

and Corps district regulatory staff based around the country.”

Cost Analysis 13; see id. at 14. The overwhelming majority of

general permits authorize activities that involve three or fewer

acres of impacted waters. See, e.g., Retrospective 35.

examples nominated by the regulated community, and

to have included large projects, including public-works

projects undertaken by public entities, that would

have entailed more extensive analyses and therefore

greater costs.“ Sunding 73. The Corps’ own 2001

study, which excluded projects affecting more than

three acres, found that the average applicant for an

individual permit spent $12,000 to $24,000 in fiscal

year 1998, and that an average of 89 days elapsed

between the Corps’ receipt of a completed permit

application and its issuance of a decision. Cost

Analysis 14 & 15 n.6. The wide variance between the

Corps’ estimates and the Sunding estimates reflects

the fact that individual-permitting costs vary widely

based on the circumstances of the project. It also

suggests the difficulty of drawing reliable inferences

from cost estimates based on fewer than 100 permit

applications out of the thousands filed annually.” In

view of that uncertainty, it was particularly inap-

propriate for the court of appeals to rely on a single

article’s cost figures to discount the adequacy of the

“ The article stated that the median cost of seeking an individual

permit ($155,000) was much lower than the average cost

($271,596), indicating that the largest projects were driving up the

average. Sunding 74 & n.67.

8 Considering “average” permitting costs in the abstract ignores

important information—not only the extent and gravity of the

projected impact on waters of the United States, but also the cost

of the permit relative to the cost and scope of the project. A large

project with a greater environmental impact will naturally give

rise to higher CWA permitting costs, just as it may result in higher

state and municipal building- or zoning-permit costs. When a

project is itself large-scale, even a permitting cost that appears

large in a vacuum may be a relatively minor portion of the overall

planned expenditure.

permitting process that Congress has established as a

means of obtaining judicial review.

2. A recipient of an affirmative jurisdictional de-

termination who elects to proceed with discharges

may also obtain judicial review of the CWA coverage

issue if the government brings an enforcement pro-

ceeding or an aggrieved private plaintiff commences a

citizen suit. If EPA assesses an administrative penal-

ty, 33 U.S.C. 1319(g), or issues a compliance order, 33

U.S.C. 1319(a), those actions are immediately review-

able. See pp. 9-10, supra. The United States could

also initiate a judicial-enforcement action, in which it

would bear the burden of proving by a preponderance

of the evidence that the property contains covered

waters. 33 U.S.C. 1319(b). An aggrieved citizen like-

wise could file suit to allege that the landowner’s dis-

charges violated the CWA, see 33 U.S.C. 1365(a)(1)

and (f), and the citizen plaintiff would bear the burden

of proof on the coverage issue.

A landowner who discharges dredged or fill mate-

rial without a permit may face monetary penalties if a

court ultimately concludes that the discharges oc-

curred into covered waters. 33 U.S.C. 1319(d). It is

therefore understandable that persons in respondents’

position would prefer a pre-permit, pre-discharge

judicial ruling on the CWA coverage issue. Neither

the CWA nor the applicable agency regulations, how-

ever, require the Corps to issue jurisdictional deter-

minations, either in general or in any particular case.

If respondents had not received a jurisdictional de-

termination, they could have obtained a judicial ruling

on the coverage question only through the routes

described above, ie., by applying for a permit and

then seeking judicial review of the Corps’ decision on

that application, or by contesting the CWA’s applica-

bility in opposing any enforcement action. The fact

that respondents voluntarily requested and received a

jurisdictional determination does not make those

avenues of review any less “adequate” than they

would otherwise be.

CONCLUSION

The judgment of the court of appeals should be

reversed.

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

General

DAVID R. COOPER AARON P. AVILA

Chief Counsel JENNIFER SCHELLER NEUMANN

United States Army ROBERT J. LUNDMAN

Corps of Engineers Attorneys

JANUARY 2016

APPENDIX

1. 5U.S.C. 704 provides:

Actions reviewable

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. A

preliminary, procedural, or intermediate agency action

or ruling not directly reviewable is subject to review

on the review of the final agency action. Except as

otherwise expressly required by statute, agency action

otherwise final is final for the purposes of this section

whether or not there has been presented or deter-

mined an application for a declaratory order, for any

form of reconsideration, or, unless the agency other-

wise requires by rule and provides that the action

meanwhile is inoperative, for an appeal to superior

agency authority.

2. 33 U.S.C. 1311(a) provides:

Effluent limitations

(a) Illegality of pollutant discharges except in com-

pliance with law

Except as in compliance with this section and sec-

tions 1312, 1316, 1317, 13828, 1342, and 1344 of this title,

the discharge of any pollutant by any person shall be

unlawful.

(1a)

3. 33 U.S.C. 1319 provides in pertinent part:

Enforcement

(a) State enforcement; compliance orders

(1) Whenever, on the basis of any information

available to him, the Administrator finds that any per-

son is in violation of any condition or limitation which

implements section 1311, 1312, 1316, 1317, 1318, 1328,

or 1345 of this title in a permit issued by a State under

an approved permit program under section 1342 or

1344 of this title, he shall proceed under his authority

in paragraph (3) of this subsection or he shall notify

the person in alleged violation and such State of such

finding. If beyond the thirtieth day after the Admin-

istrator’s notification the State has not commenced

appropriate enforcement action, the Administrator

shall issue an order requiring such person to comply

with such condition or limitation or shall bring a civil

action in accordance with subsection (b) of this section.

* * * * *

(3) Whenever on the basis of any information

available to him the Administrator finds that any per-

son is in violation of section 1311, 1312, 1316, 1317,

1318, 1328, or 1345 of this title, or is in violation of any

permit condition or limitation implementing any of

such sections in a permit issued under section 1342 of

this title by him or by a State or in a permit issued

under section 1344 of this title by a State, he shall

issue an order requiring such person to comply with

such section or requirement, or he shall bring a civil

action in accordance with subsection (b) of this section.

* aa * a *

(b) Civil actions

The Administrator is authorized to commence a civil

action for appropriate relief, including a permanent or

temporary injunction, for any violation for which he is

authorized to issue a compliance order under subsec-

tion (a) of this section. Any action under this subsec-

tion may be brought in the district court of the United

States for the district in which the defendant is located

or resides or is doing business, and such court shall

have jurisdiction to restrain such violation and to re-

quire compliance. Notice of the commencement of

such action shall be given immediately to the appro-

priate State.

(1) Negligent violations

Any person who—

(A) negligently violates section 1311, 1312,

1316, 1317, 1318, 1321(b)(3), 1328, or 1345 of this

title, or any permit condition or limitation im-

plementing any of such sections in a permit is-

sued under section 1342 of this title by the Ad-

ministrator or by a State, or any requirement

imposed in a pretreatment program approved

under section 1342(a)(3) or 1342(b)(8) of this ti-

tle or in a permit issued under section 1344 of

this title: by the Secretary of the Army or by a

State; or

(B) negligently introduces into a sewer

system or into a publicly owned treatment

works any pollutant or hazardous substance

which such person knew or reasonably should

have known could cause personal injury or

property damage or, other than in compliance

with all applicable Federal, State, or local re-

quirements or permits, which causes such

treatment works to violate any effluent limita-

tion or condition in any permit issued to the

treatment works under section 1342 of this title

by the Administrator or a State;

shall be punished by a fine of not less than $2,500

nor more than $25,000 per day of violation, or by

imprisonment for not more than 1 year, or by both.

If a conviction of a person is for a violation commit-

ted after a first conviction of such person under this

paragraph, punishment shall be by a fine of not

more than $50,000 per day of violation, or by im-

prisonment of not more than 2 years, or by both.

(2) Knowing violations

Any person who—

(A) knowingly violates section 1311, 1312,

1316, 1317, 1318, 1321(b)(3), 1328, or 1345 of this

title, or any permit condition or limitation im-

plementing any of such sections in a permit is-

sued under section 1342 of this title by the Ad-

ministrator or by a State, or any requirement

imposed in a pretreatment program approved

under section 1342(a)(3) or 1342(b)(8) of this ti-

tle or in a permit issued under section 1344 of

this title by the Secretary of the Army or by a

State; or

(B) knowingly introduces into a sewer sys-

tem or into a publicly owned treatment works

any pollutant or hazardous substance which

such person knew or reasonably should have

known could cause personal injury or property

damage or, other than in compliance with all

applicable Federal, State, or local requirements

or permits, which causes such treatment works

to violate any effluent limitation or condition in

a permit issued to the treatment works under

section 1342 of this title by the Administrator or

a State;

shall be punished by a fine of not less than $5,000

nor more than $50,000 per day of violation, or by

imprisonment for not more than 3 years, or by both.

If a conviction of a person is for a violation commit-

ted after a first conviction of such person under this

paragraph, punishment shall be by a fine of not

more thar: $100,000 per day of violation, or by im-

prisonment of not more than 6 years, or by both.

* * * * *

(d) Civil penalties; factors considered in determining

amount

Any person who violates section 1311, 1312, 1316,

1317, 1318, 1328, or 1345 of this title, or any permit

condition or limitation implementing any of such sec-

tions in a permit issued under section 1342 of this title

by the Administrator, or by a State, ,' or in a permit

issued under section 1344 of this title by a State, or

any requirement imposed in a pretreatment program

approved under section 1342(a)(3) or 1342(b)(8) of this

title, and any person who violates any order issued by

the Administrator under subsection (a) of this section,

shall be subject to a civil penalty not to exceed $25,000

per day for each violation. In determining the

amount of a civil penalty the court shall consider the

seriousness of the violation or violations, the economic

benefit (if any) resulting from the violation, any histo-

ry of such violations, any good-faith efforts to comply

with the applicable requirements, the economic impact

of the penalty on the violator, and such other matters

as justice may require. For purposes of this subsec-

tion, a single operational upset which leads to simul-

taneous violations of more than one pollutant parame-

ter shall be treated as a single violation.

* * * * *

' So in original.

(g) Administrative penalties

(1) Violations

Whenever on the basis of any information

available—

(A) the Administrator finds that any person

has violated section 1311, 1312, 1316, 1317, 1318,

1328, or 1345 of this title, or has violated any

permit condition or limitation implementing any

of such sections in a permit issued under section

1342 of this title by the Administrator or by a

State, or in a permit issued under section 1344

of this title by a State, or

(B) the Secretary of the Army (hereinafter

in this subsection referred to as the “Secre-

tary”) finds that any person has violated any

permit condition or limitation in a permit issued

under section 1344 of this title by the Secretary,

the Administrator or Secretary, as the case may be,

may, after consultation with the State in which the

violation occurs, assess a class I civil penalty or a

class II civil penalty under this subsection.

(2) Classes of penalties

(A) Class I

The amount of a class I civil penalty under

paragraph (1) may not exceed $10,000 per viola-

tion, except that the maximum amount of any

class I civil penalty under this subparagraph

shall not exceed $25,000. Before issuing an or-

der assessing a civil penalty under this subpar-

agraph, the Administrator or the Secretary, as

the case may be, shall give to the person to be

assessed such penalty written notice of the Ad-

ministrator’s or Secretary’s proposal to issue

such order and the opportunity to request, with-

in 30 days of the date the notice is received by

such person, a hearing on the proposed order.

Such hearing shall not be subject to section 554

or 556 of title 5, but shall provide a reasonable

opportunity to be heard and to present evi-

dence.

(B) Class Il

The amount of a class II civil penalty under

paragraph (1) may not exceed $10,000 per day

for each day during which the violation contin-

ues; except that the maximum amount of any

class II civil penalty under this subparagraph

shall not exceed $125,000. Except as otherwise

provided in this subsection, a class II civil pen-

alty shall be assessed and collected in the same

manner, and subject to the same provisions, as

in the case of civil penalties assessed and col-

lected after notice and opportunity for a hearing

on the record in accordance with section 554 of

title 5. The Administrator and the Secretary

may issue rules for discovery procedures for

hearings under this subparagraph.

(3) Determining amount

In determining the amount of any penalty as-

sessed under this subsection, the Administrator or

the Secretary, as the case may be, shall take into

account the nature, circumstances, extent and grav-

ity of the violation, or violations, and, with respect

to the violator, ability to pay, any prior history of

such violations, the degree of culpability, economic

benefit or savings (if any) resulting from the viola-

tion, and such other matters as justice may require.

For purposes of this subsection, a single operational

upset which leads to simultaneous violations of

more than one pollutant parameter shall be treated

as a single violation.

* * . * *

(5) Finality of order

An order issued under this subsection shall be-

come final 30 days after its issuance unless a peti-

tion for judicial review is filed under paragraph (8)

or a hearing is requested under paragraph (4)(C).

If such a hearing is denied, such order shall become

final 30 days after such denial.

(6) Effect of order

(A) Limitation on actions under other sections

Action taken by the Administrator or the

Secretary, as the case may be, under this sub-

section shall not affect or limit the Administra-

tor’s or Secretary’s authority to enforce any

10a

provision of this chapter; except that any

violation—

(i) with respect to which the Adminis-

trator or the Secretary has commenced and

is diligently prosecuting an action under this

subsection,

(ii) with respect to which a State has

commenced and is diligently prosecuting an

action under a State law comparable to this

subsection, or

(iii) for which the Administrator, the

Secretary, or the State has issued a final or-

der not subject to further judicial review and

the violator has paid a penalty assessed un-

der this subsection, or such comparable

State law, as the case may be,

shall not be the subject of a civil penalty action

under subsection (d) of this section or section

1321(b) of this title or section 1365 of this title.

* * * . *

(8) Judicial review

Any person against whom a civil penalty is as-

sessed under this subsection or who commented on

the proposed assessment of such penalty in accor-

dance with paragraph (4) may obtain review of such

assessment—

lla

(A) in the case of assessment of a class I

civil penalty, in the United States District Court

for the District of Columbia or in the district in

which the violation is alleged to have occurred,

(B) in the case of assessment of a class II

civil penalty, in United States Court of Appeals

for the District of Columbia Circuit or for any

other circuit in which such person resides or

transacts business,

by filing a notice of appeal in such court within the

30-day period beginning on the date the civil penal-

ty order is issued and by simultaneously sending a

copy of such notice by certified mail to the Admin-

istrator or the Secretary, as the case may be, and

the Attorney General. The Administrator or the

Secretary shall promptly file in such court a certi-

fied copy of the record on which the order was is-

sued. Such court shall not set aside or remand

such order unless there is not substantial evidence

in the record, taken as a whole, to support the find-

ing of a violation or unless the Administrator’s or

Secretary's assessment of the penalty constitutes

an abuse of discretion and shall not impose addi-

tional civil penalties for the same violation unless

the Administrator’s or Secretary’s assessment of

the penalty constitutes an abuse of discretion.

* * * - *

12a

4. 33 U.S.C. 1344 provides in pertinent part:

Permits for dredged or fill material

(a) Discharge into navigable waters at specified dis-

posal sites

The Secretary may issue permits, after notice and

opportunity for public hearings for the discharge of

dredged or fill material into the navigable waters at

specified disposal sites. Not later than the fifteenth

day after the date an applicant submits all the infor-

mation required to complete an application for a per-

mit under this subsection, the Secretary shall publish

the notice required by this subsection.

e * * * *

(e) General permits on State, regional, or nationwide

basis

(1) In carrying out his functions relating to the

discharge of dredged or fill material under this section,

the Secretary may, after notice and opportunity for

public hearing, issue general permits on a State, re-

gional, or nationwide basis for any category of activi-

ties involving discharges of dredged or fill material if

the Secretary determines that the activities in such

category are similar in nature, will cause only minimal

adverse environmental effects when performed sepa-

rately, and will have only minimal cumulative adverse

effect on the environment. Any general permit issued

under this subsection shall (A) be based on the guide-

lines described in subsection (b)(1) of this section, and

13a

(B) set forth the requirements and standards which

shall apply to any activity authorized by such general

permit.

(2) No general permit issued under this subsec-

tion shall be for a period of more than five years after

the date of its issuance and such general permit may

be revoked or modified by the Secretary if, after op-

portunity for public hearing, the Secretary determines

that the activities authorized by such general permit

have an adverse impact on the environment or such

activities are more appropriately authorized by indi-

vidual permits.

(f) Non-prohibited discharge of dredged or fill mate-

rial

(1) Except as provided in paragraph (2) of this

subsection, the discharge of dredged or fill material—

(A) from normal farming, silviculture, and

ranching activities such as plowing, seeding, culti-

vating, minor drainage, harvesting for the produc-

tion of food, fiber, and forest products, or upland

soil and water conservation practices;

(B) for the purpose of maintenance, including

emergency reconstruction of recently damaged

parts, of currently serviceable structures such as

dikes, dams, levees, groins, riprap, breakwaters,

causeways, and bridge abutments or approaches,

and transportation structures;

l4a

nance of farm or stock ponds or irrigation ditches,

or the maintenance of drainage ditches;

(D) for the purpose of construction of tempo-

rary sedimentation basins on a construction site

which does not include placement of fill material

into the navigable waters;

(E) for the purpose of construction or mainte-

nance of farm roads or forest roads, or temporary

roads for moving mining equipment, where such

roads are constructed and maintained, in accord-

ance with best management practices, to assure

that flow and circulation patterns and chemical and

biological characteristics of the navigable waters

are not impaired, that the reach of the navigable

waters is not reduced, and that any adverse effect

on the aquatic environment will be otherwise mini-

mized;

(F) resulting from any activity with respect to

which a State has an approved program under sec-

tion 1288(b)(4) of this title which meets the re-

quirements of subparagraphs (B) and (C) of such

section,

is not prohibited by or otherwise subject to regulation

under this section or section 1311(a) or 1342 of this

title (except for effluent standards or prohibitions

under section 1317 of this title).

(2) Any discharge of dredged or fill material into

the navigable waters incidental to any activity having

15a

as its purpose bringing an area of the navigable waters

into a use to which it was not previously subject, where

the flow or circulation of navigable waters may be

impaired or the reach of such waters be reduced, shall

be required to have a permit under this section.

* * * * *

(p) Compliance

Compliance with a permit issued pursuant to this

section, including any activity carried out pursuant to a

general permit issued under this section, shall be

deemed compliance, for purposes of sections 1319 and

1365 of this title, with sections 1311, 1317, and 1343 of

this title.

* * x * *

(s) Violation of permits

(1) Whenever on the basis of any information

available to him the Secretary finds that any person is

in violation of any condition or limitation set forth in a

permit issued by the Secretary under this section, the

Secretary shall issue an order requiring such person to

comply with such condition or limitation, or the Secre-

tary shall bring a civil action in accordance with para-

graph (3) of this subsection.

(2) A copy of any order issued under this subsec-

tion shall be sent immediately by the Secretary to the

State in which the violation occurs and other affected

States. Any order issued under this subsection shall

16a

be by personal service and shall state with reasonable

specificity the nature of the violation, specify a time for

compliance, not to exceed thirty days, which the Sec-

retary determines is reasonable, taking into account

the seriousness of the violation and any ;zood faith ef-

forts to comply with applicable requirements. In any

case in which an order under this subsection is issued

to a corporation, a copy of such order shall be served

on any appropriate corporate officers.

(3) The Secretary is authorized to commence a

civil action for appropriate relief, including a perma-

nent or temporary injunction for any violation for

which he is authorized to issue a compliance order

under paragraph (1) of this subsection. Any action

under this paragraph may be brought in the district

court of the United States for the district in which the

defendant is located or resides or is doing business,

and such court shall have jurisdiction to restrain such

violation and to require compliance. Notice of the

commencement of such acton’ shall be given immedi-

ately to the appropriate State.

(4) Any person who violates any condition or

limitation in a permit issued by the Secretary under

this section, and any person who violates any order is-

sued by the Secretary under paragraph (1) of this sub-

section, shall be subject to a civil penalty not to exceed

$25,000 per day for each violation. In determining

the amount of a civil penalty the court shall consider

' So in original. Probably should be “action”

17a

the seriousness of the violation or violations, the eco-

nomic benefit (if any) resulting from the violation, any

history of such violations, any good-faith efforts to

comply with the applicable requirements, the economic

impact of the penalty on the violator, and such other

matters as justice may require.

* * * * *

5. 33 U.S.C. 1365 provides in pertinent part:

Citizen suits

(a) Authorization; jurisdiction

Except as provided in subsection (b) of this section

and section 1319(g)(6) of this title, any citizen may

commence a civil action on his own behalf—

(1) against any person (including (i) the

United States, and (ii) any other governmental in-

strumentality or agency to the extent permitted by

the eleventh amendment to the Constitution) who is

alleged to be in violation of (A) an effluent standard

or limitation under this chapter or (B) an order is-

sued by the Administrator or a State with respect to

such a standard or limitation, or

(2) against the Administrator where there is

alleged a failure of the Administrator to perform

any act or duty under this chapter which is not dis-

cretionary with the Administrator.

18a

The district shall have jurisdiction, without regard to

the amount courts in controversy or the citizenship of

the parties, to enforce such an effluent standard or

limitation, or such an order, or to order the Adminis-

trator to perform such act or duty, as the case may be,

and to apply any appropriate civil penalties under

section 1319(d) of this title.

* > * * .

(f) Effluent standard or limitation

For purposes of this section, the term “effluent

standard or limitation under this chapter” means

(1) effective July 1, 1973, an unlawful act under sub-

section (a) of section 1311 of this title; (2) an effluent

limitation or other limitation under section 1311 or

1312 of this title; (3) standard of performance under

section 1316 of this title; (4) prohibition, effluent

standard or pretreatment standards under section

1317 of this title; (5) certification under section 1341 of

this title; (6) a permit or condition thereof issued under

section 1342 of this title, which is in effect under this

chapter (including a requirement applicable by reason

of section 1323 of this title); or (7) a regulation under

section 1345(d) of this title,.'

* * * * x

' So in original.

19a

6. 33 C.F.R. 320.1(a)(6) provides:

Purpose and scope.

(a) Regulatory approach of the Corps of Engi-

neers.

(6) The Corps has authorized its district engi-

neers to issue formal determinations concerning the

applicability of the Clean Water Act or the Rivers

and Harbors Act of 1899 to activities or tracts of land

and the applicability of general permits or statutory

exemptions to proposed activities. A determination

pursuant to this authorization shall constitute a

Corps final agency action. Nothing contained in

this section is intended to affect any authority EPA

has under the Clean Water Act.

7. 33 C.F.R. 330.1 provides:

Purpose and policy.

(a) Purpose. This part describes the policy and

procedures used in the Department of the Army’s na-

tionwide permit program to issue, modify, suspend, or

revoke nationwide permits; to identify conditions, limi-

tations, and restrictions on the nationwide permits;

and, to identify any procedures, whether required or

optional, for authorization by nationwide permits.

(b) Nationwide permits. Nationwide permits

(NWPs) are a type of general permit issued by the

Chief of Engineers and are designed to regulate with

20a

little, if any, delay or paperwork certain activities

having minimal impacts. The NWPs are proposed,

issued, modified, reissued (extended), and revoked

from time to time after an opportunity for public notice

and comment. Proposed NWPs or modifications to or

reissuance of existing NWPs will be adopted only after

the Corps gives notice and allows the public an oppor-

tunity to comment on and request a public hearing

regarding the proposals. The Corps will give full

consideration to all comments received prior to reach-

ing a final decision.

(ec) Terms and conditions. An activity is au-

thorized under an NWP only if that activity and the

permittee satisfy all of the NWP’s terms and condi-

tions. Activities that do not qualify for authorization

under an NWP still may be authorized by an individual

or regional general permit. The Corps will consider

unauthorized any activity requiring Corps authoriza-

tion if that activity is under construction or completed

and does not comply with all of the terms and condi-

tions of an NWP, regional general permit, or an indi-

vidual permit. The Corps will evaluate unauthorized

activities for enforcement action under 33 CFR part

326. The district engineer (DE) may elect to suspend

enforcement proceedings if the permittee modifies his

project to comply with an NWP or a regional general

permit. After considering whether a violation was

knowing or intentional, and other indications of the

need for a penalty, the DE can elect to terminate an

enforcement proceeding with an after-the-fact auth-

2la

orization under an NWP, if all terms and conditions of

the NWP have been satisfied, either before or after the

activity has been accomplished.

* * * * *

(e) Notifications. (1) In most cases, permit-

tees may proceed with activities authorized by NWPs

without notifying the DE. However, the prospective

permittee should carefully review the language of the

NWP to ascertain whether he must notify the DE

prior to commencing the authorized activity. For

NWPs requiring advance notification, such notification

must be made in writing as early as possible prior to

commencing the proposed activity. The permittee

may presume that his project qualifies for the NWP

unless he is otherwise notified by the DE within a

45-day period. The 45-day period starts on the date

of receipt of the notification in the Corps district office

and ends 45 calendar days later regardless of week-

ends or holidays. If the DE notifies the prospective

permittee that the notification is incomplete, a new

45-day period will commence upon receipt of the re-

vised notification. The prospective permittee may not

proceed with the proposed activity before expiration of

the 45-day period unless otherwise notified by the DE.

If the DE fails to act within the 45-day period, he must

use the procedures of 33 CFR 330.5 in order to modify,

suspend, or revoke the NWP authorization.

(2) The DE will review the notification and may

add activity-specific conditions to ensure that the ac-

22a

tivity complies with the terms and conditions of the

NWP and that the adverse impacts on the aquatic

environment and other aspects of the public interest

are individually and cumulatively minimal.

e * * * *

(f) Individual Applications. DEs should review

all incoming applications for individual permits for

possible eligibility under regional general permits or

NWPs. If the activity complies with the terms and

conditions of one or more NWP, he should verify the

authorization and so notify the applicant. If the DE

determines that the activity could comply after rea-

sonable project modifications and/or activity-specific

conditions, he should notify the applicant of such mod-

ifications and conditions. If such modifications and

conditions are accepted by the applicant, verbally or in

writing, the DE will verify the authorization with the

modifications and conditions in accordance with 33

CFR 330.6(a). However, the DE will proceed with

processing the application as an individual permit and

take the appropriate action within 15 calendar days of

receipt, in accordance with 33 CFR 325.2(a)(2), unless

the applicant indicates that he will accept the modifi-

cations or conditions.

(g) Authority. NWPs can be issued to satisfy the

permit requirements of section 10 of the Rivers and

Harbors Act of 1899, section 404 of the Clean Water

Act, section 103 of the Marine Protection, Research,

and Sanctuaries Act, or some combination thereof.

23a

The applicable authority will be indicated at the end of

each NWP NWPs and their conditions previously

published at 33 CFR 330.5 and 330.6 will remain in

effect until they expire or are modified or revoked in

accordance with the procedures of this part.

8. 33 C.F.R. 331.2 provides in pertinent part:

Definitions.

~ * * * *

Approved jurisdictional determination means 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. Approved JDs are

clearly designated appealable actions and will include a

basis of JD with the document.

* * « * *

Declined permit means a proffered individual per-

mit, including a letter of permission, that an applicant

has refused to accept, because he has objections to the

terms and special conditions therein. A declined

permit can also be an individual permit that the appli-

cant originally accepted, but where such permit was

subsequently modified by the district engineer, pur-

suant to 33 CFR 325.7, in such a manner that the re-

sulting permit contains terms and special conditions

that lead the applicant to decline the modified permit,

24a

provided that the applicant has not started work in

waters of the United States authorized by such permit.

Where an applicant declines a permit (either initial or

modified), the applicant does not have a valid permit to

conduct regulated activities in waters of the United

States, and must not begin construction of the work

requiring a Corps permit unless and until the applicant

receives and accepts a valid Corps permit.

* a7 * . *

Jurisdictional determination (JD) means 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 a written

determination that a waterbody is subject to regula-

tory jurisdiction under Section 9 or 10 of the Rivers

and Harbors Act of 1899 (33 U.S.C. 401 et seq.). Ad-

ditionally, the term includes a written reverification of

expired JDs and a written reverification of JDs where

new information has become available that may affect

the previously written determination. For example,

such geographic JDs may include, but are not limited

to, one or more of the following determinations: the

presence or absence of wetlands; the location(s) of the

wetland boundary, ordinary high water mark, mean

high water mark, and/or high tide line; interstate com-

merce nexus for isolated waters; and adjacency of wet-

lands to other waters of the United States. All JDs

will be in writing and will be identified as either pre-

25a

liminary or approved. JDs do not include determina-

tions that a particular activity requires a DA permit.

. * * * *

Preliminary JDs 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. Preliminary JDs are

advisory in nature and may not be appealed. Prelim-

inary JDs include compliance orders that have an

implicit JD, but no approved JD.

* * * * *

9. 33 C.F.R. 331.5(a) provides:

Criteria.

(a) Criteria for appeal—{1) Submission of RFA.

The appellant must submit a completed RFA (as de-

fined at § 331.2) to the appropriate division office in

order to appeal an approved JD, a permit denial, or a

declined permit. An individual permit that has been

signed by the applicant, and subsequently unilaterally

modified by the district engineer pursuant to 33 CFR

325.7, may be appealed under this process, provided

that the applicant has not started work in waters of the

United States authorized by the permit. The RFA

must be received by the division engineer within 60

days of the date of the NAP

26a

(2) Reasons for appeal. The reason(s) for re-

questing an appeal of an approved JD, a permit denial,

or a declined permit must be specifically stated in the

RFA and must be more than a simple request for ap-

peal because the affected party did not like the ap-

proved JD, permit decision, or the permit conditions.

Examples of reasons for appeals include, but are not

limited to, the following: A proceaural error; an in-

correct application of law, regulation or officially

promulgated policy; omission of material fact; incor-

rect application of the current regulatory criteria and

associated guidance for identifying and delineating

wetlands; incorrect application of the Section 404(b)(1)

Guidelines (see 40 CFR part 230); or use of incorrect

data. The reasons for appealing a permit denial or a

declined permit may include jurisdiction issues, wheth-

er or not a previous approved JD was appealed.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.