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Document Type

Comments

Abstract

On April 10, 2015, in Hawkes Co. v. U.S. Army Corps of Engineers, the U.S. Court of Appeals for the Eighth Circuit held that a U.S. Army Corps of Engineers jurisdictional determination made pursuant to the Clean Water Act is subject to judicial review as final agency action under the Administrative Procedure Act. Jurisdictional determinations are threshold decisions of the Corps assessing whether a piece of land is subject to regulation under the Clean Water Act. The Eighth Circuit’s decision contradicts a previous decision of the U.S. Court of Appeals for the Fifth Circuit, which held pre-enforcement judicial review of Corps jurisdictional determinations improper under the Administrative Procedure Act. This Comment argues that the Eighth Circuit’s analysis inappropriately relied on the costs of permitting under the Clean Water Act. This Comment urges the U.S. Supreme Court to reverse the Eighth Circuit’s decision and to follow instead the reasoning of the Fifth Circuit. Not only would the Eighth Circuit’s decision in this case disrupt the system of review in place for agency action under the Administrative Procedure Act, it would complicate jurisdictional jurisprudence by creating two discrete sets of jurisdictional case law subject to different standards of review in the courts.

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