For judicial review, an agency action must represent the culmination of the agency’s decision-making process and it must one from which legal consequences flow. A JD meets these requirements. It is issued after a sometimes lengthy administrative investigation and extensive fact-finding regarding the property’s physical and hydrological characteristics. It has legal consequences. If it determines that waters of the United States are absent, the JD gives the owner a 5-year period of immunity from civil or criminal prosecution under the Clean Water Act. Judicial review might be precluded if an adequate alternative to court review existed, but none does. An owner need not act and await an enforcement action since he thereby risks substantial civil and criminal penalties. Nor is application for a permit an adequate alternative since the permit process is lengthy and expensive and no permit is required if waters of the United States are absent.
United States Supreme Court (Roberts, C.J.; Kennedy, Thomas, Alito, Kagan & Ginsburg, JJ., concurring); May 31, 2016; 2016 WL 3041052