In prior posts, I have discussed the split in the federal circuit courts over whether Army Corps of Engineers (ACOE) Jurisdictional Determinations (JDs) can be challenged in Court. A JD is the ACOE formal determination as to whether streams and wetlands are federally protected under the Clean Water Act and whether a 404/401 permit is needed prior to any disturbance or impact.
The Eighth Circuit Court of Appeals determined that an approved JD is a final agency action that can be challenged. See, Hawkes Co., Inc. et al v. Corps, Case No. 13-3067 (April 10, 2015). The Eighth Circuit Court decision reached the opposite conclusion as the Fifth Circuit in Belle v. Corps., 761 F. 3d 383 (5th Cir. 2014) which held JDs could not be challenged in Court and can only be challenged through administrative procedures before the ACOE.
On December 11, 2015, the Supreme Court agreed to hear the case due to the split in the circuits. A decision in this case is expected some time before June 2016.
Property owners face a Hobson choice if JDs cannot be challenged in Court. They can defer their legal challenge and start the permitting process, forgo the development altogether or risk enforcement by proceeding without the proper permits.
The ACOE and U.S. EPA argue that JDs do not make any final legal determinations because the property owner still has the options outlined above. Frankly, this seems ridiculous. There should be a legal means to argue the ACOE overstretched and asserted jurisdiction over wetlands that were outside the coverage of the Clean Water Act. Especially when the scope of jurisdiction under the Clean Water Act is still so unclear, even after two separate Supreme Court decisions. Why not give the property owner their day in Court?
I have heard legal scholars opine that the Court will look to the Administrative Procedures Act and will determine, from a legal perspective, JDs are not appealable. If the Supreme Court reaches that conclusion it will be an unfortunate circumstance for property owners. Purely from a policy perspective, their should be a way to challenge Corps decisions before a neutral third party.
Some also speculate that that if the Court does find JDs are appealable, the ACOE may simply stop issuing approved JDs. Again, from a policy perspective that would be a very unfortunate result.
The Significant Nexus Test used to determine jurisdiction established by the Justice Kennedy in Rapanos is by no means clear cut. It involves balancing various factors as to how closely related small water bodies are to larger water bodies. Under the test, a waterway is evaluated to determine whether it impacts the "chemical, physical, and the biological integrity" of a navigable water. If it does impact a navigable water in that manner, then it falls under federal jurisdiction.
With such a subjective method of determining jurisdiction, property owners should be entitled to have a legal determination as to whether the wetlands or streams on their property fall under federal protection. After receiving a legal determination, the property owner should also have a means to challenge the federal agency’s determination.