On December 11, 2015, the U.S. Supreme Court granted a petition for a writ of certiorari to review a Clean Water Act (CWA) decision by the U.S. Court of Appeals for the Eighth Circuit, Hawkes Co., Inc. v. U.S. Army Corps of Engineers, 782 F.3d 994 (8th Cir. 2015). (For a summary of the Eighth Circuit Decision, please see our prior post on the case.) The Eighth Circuit’s April 10, 2015, decision unanimously held that CWA jurisdictional determinations (JDs)—determinations of whether a water body is subject to federal jurisdiction under the CWA—issued by EPA or the Army Corps of Engineers can be challenged in court even before agency enforcement actions based on the JDs. The decision created a split with the U.S. Court of Appeals for the 5th Circuit, which, in July 2014, held that JDs are not judicially reviewable. Belle Co., L.L.C. v. U.S. Army Corps of Engineers, 761 F.3d 383 (5th Cir. 2014).

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