Supreme Court Opens Door Wider to Judicial Reviews of Many Corps Wetland Calls
The U.S. Supreme Court just announced in a long-awaited decision that an "approved" jurisdictional determination (JD) is a final agency action that is judicially reviewable. United States Army Corps of Engineers v. Hawkes Co., Inc., _____ S.Ct. ______, No. 15-290 (May 31, 2016). This case means landowners need no longer wait for a lengthy Section 404 permit process under the Clean Water Act (CWA) to unfold before challenging final wetland or "other water" regulatory jurisdictional calls by the federal government. Section 404 permits are needed from the Corps of Engineers for most development in wetlands and other regulated waters (for roads, buildings, airports, golf courses, residences, and so forth).
The Court unanimously found an approved JD consumes the agency’s decision-making process over what "waters of the United States" are or are not regulated under the CWA, as well as determining rights and obligations from which legal consequences flow. For instance, a "negative" but approved JD that finds no regulated waters generally provides a landowner with a safe harbor from Section 404 permitting for five years and also limits citizen suits against the landowner for wholly past violations if land is developed in the interim without a permit. A "positive," approved JD finding any regulated waters removes these protections. Alternative relief through a landowner risking U.S. EPA enforcement notwithstanding a positive JD finding regulated waters, or through a landowner seeking an expensive Section 404 permit, were considered inadequate by the Court, which favored judicial review as a remedy. Four Justices relied in part on a memorandum of agreement (MOA) between the Corps and EPA dealing with the finality of Corps-approved JDs to support the decision. A concurring opinion by Justice Kennedy questioned whether the MOA is controlling and added that, without a JD process, "[Section 404] continues to raise troubling questions regarding the government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation." (Remember he is the Justice in the Rapanos wetland case in 2007 who coined the phrase "significant nexus" in inspiring agencies to expand their regulations over many waters.) Three other Justices also questioned the MOA as being authoritative. A related JD case from the 5th Circuit, Kent Recycling, No. 14-493 Cert. Denied, is still pending reconsideration by the Court.
As a cautionary note, landowners with "preliminary" JDs (informal agency advice only on regulatory jurisdiction based on limited information submitted by the landowner), or with no JDs or administrative orders at all, do not have an immediate right to judicial review under this particular opinion. It is also possible that the agencies will revise their MOA regarding JDs as a result of this decision and make approved JDs less available. However, those who wish to challenge approved JDs in court should ensure that their wetland consultant sends an initial, comprehensive wetland report to the Corps on what waters should not be regulated (including any lack of "significant nexus") so that there is an adequate administrative record for later judicial review.
In summary, landowners now have a judicial option to consider, beyond arguments with or administrative appeals within the Corps, if they feel the agency is making a land grab through Section 404.