January 26, 2021

Volume XI, Number 26


January 25, 2021

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Supreme Court Asked to Allow Immediate Judicial Review of Clean Water Act Jurisdictional Determinations

A landfill developer has asked the Supreme Court to review a decision of the Fifth Circuit holding that a jurisdictional determination by the U.S. Army Corps of Engineers is not final agency action subject to judicial review.  The Supreme Court previously held, in its 2012 Sackett opinion, that an EPA compliance order issued under the Clean Water Act is final and immediately reviewable under the Administrative Procedure Act.  But, so far, the Courts of Appeals have declined to extendSackett to allow immediate review of a jurisdictional determination, which represents the Corps’ findings about whether a property contains wetlands or other waters of the United States subject to the Corps’ regulatory jurisdiction under Clean Water Act section 404.

The Fifth Circuit, in July, held that the developer, Kent Recycling Services LLC, and the property owner could not challenge the Corps’ jurisdictional determination that certain property in Louisiana, which Kent wished to purchase and develop as a landfill, contained jurisdictional wetlands.  Instead, the court said, Kent must first apply for a section 404 permit to fill the wetlands, and then bring its challenge to the JD as part of an action seeking judicial review of the Corps’ permit decision.  The essence of Kent’s argument, which relies heavily on Sackett, is that this approach makes no sense because a permit—along with the lengthy and expensive process required to obtain a permit decision—is required only if the JD is valid.  Furthermore, the JD itself, like the compliance order inSackett, imposes immediate costs and obligations on the property owner and subjects it to significant liability if it engages in certain activities without a section 404 permit.

The company filed its petition for writ of certiorari with the Supreme Court on October 28.

Copyright © 2020, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume IV, Number 310



About this Author

James Rusk, land use attorney, sheppard mullin

James Rusk is an associate with the Land Use and Natural Resources practice group in the firm’s San Francisco office.

Areas of Practice

Natural Resources. Mr. Rusk represents residential, commercial and energy developers in natural resources permitting, regulatory compliance and litigation. He focuses on endangered species, wetlands, and storm water issues under federal and state law, in addition to compliance with the National Environmental Policy Act ("NEPA") and California Environmental Quality Act ("CEQA"). Because every project is...