Wetlands, Finality of Jurisdictional Determinations

On December 11, 2015, the U.S. Supreme Court agreed to review whether a Clean Water Act (CWA) jurisdictional determination issued by the U.S. Army Corps of Engineers (Corps) constitutes final agency action subject to judicial review.

Previously, three federal appeals courts could not agree on whether the nonbinding, jurisdictional determination was final agency action that could be challenged in federal court under the Administrative Procedures Act (APA).  While the CWA does not require the Corps to issue jurisdictional determinations, the approval of one indicates that the Corps will require the landowner to obtain a Section 404 Dredge and Fill Permit for activities that may affect the wetland.  Without the ability to challenge the Corps determinations, property owners whose acreage is designated as wetlands must either abandon the proposed use of the property, or initiate the expensive and time-consuming process of obtaining a 404 permit.

The 8th Circuit Court of Appeals held that wetlands determinations were nonbinding and, therefore, did not trigger a cause of action under the APA, which put the 8th Circuit at odds with the 9th and 5th Circuits who ruled previously to the contrary.  The case is expected to be heard in the March-April timeframe with a decision expected by the end of June.

For more information, contact Phillip Hoover.

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