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There has been multiple blog posts over the history of this site tracking the long and arduous processing of defining federally protected waters under the Clean Water Act.  The U.S. Supreme Court has taken up the issue on multiple occasions, perhaps most significantly in Rapanos v. United States, 547 U.S. 715 (2006) where Justice Kennedy created the “significant nexus” test for determining whether streams and/or wetlands were protected under the Clean Water Act.  The plurality decision in Rapanos along with Justice Kennedy’s Significant Nexus Test federally protect any waters that:

  • Plurality Test– are relatively permanent, standing or continuously flowing bodies of water, including those deemed traditionally navigable waterways (i.e. “traditional jurisdictional water”); and
  • Significant Nexus Test– those waters that alone or in combination with other similarly situated waters in the region, significantly affects the chemical, physical or biological integrity of a traditional jurisdictional water;

Obama 2015 WOTUS Rule and Current Court Challenges

Due to the uncertainty of applying the case-by-case “significant nexus test,” in 2015 the Obama Administration proposed the Waters of the United States (WOTUS) rule to clearly define the extent of federal jurisdiction under the Clean Water Act.  Under WOTUS, a federally protected tributary was defined to include:

  • those that can have perennial, intermittent or ephemeral flow;
  • Has a defined bed, bank and ordinary high water mark (a term defined under existing regulations);
  • Contributes flow, either directly or through another water, to as jurisdictional water; and
  • Or, is part of a network that drains to a jurisdictional water

WOTUS was seen to broaden federal jurisdiction over waterways.  The WOTUS rule was challenged immediately.  Various suits have been filed in federal district courts around the country.  Some challengers were successful in obtaining preliminary injunctions that prevented enforcement of WOTUS in a total of 28 states.  While WOTUS remains in effect in the remaining 22 states.

In 2017, the Trump Administration announced its intention to unwind the WOTUS rule and replace it with a new rule defining the extent of federal jurisdiction. The Trump Administration implemented what was deemed the “Suspension Rule” which delayed the effectiveness of WOTUS until 2020 to give it time to finalize its own rulemaking defining the scope of the Clean Water Act.

However, two recent Court decisions vacated the Suspension rule nationwide–Puget Soundkeeper Alliance, et al., v. Wheeler, et al., and South Carolina Coastal Conservation League, et al. v. Wheeler, et al.. —which held that EPA and the Army Corps of Engineers failed to comply with the Administrative Procedure Act when it issued the rule suspending WOTUS for two years.  These rulings mean that WOTUS remains effective in the 22 states where a prior preliminary injunction has not been obtained staying the effectiveness of the rule.

Trump Administration Proposes to Narrow the Definition of Federally Protected Waterways

On December 11, 2018, the Trump Administration released its draft rule defining “Waters of the U.S.” (Trump Proposed WOTUS) setting the proposed limits of federal jurisdiction under the Clean Water Act.  At the outset, the proposed rule states federally protected waters “encompass relatively permanent flowing and standing waterbodies that are traditional navigable waters in their own right or that have a specific connection to traditional navigable waters, as well as wetlands abutting or having a direct hydrologic surface connection to those waters.”  The rule states it intends the new definition to establish “bright lines” as to what is regulated and not regulated to give greater certainty.  The proposed rule goes on to discuss various categories of federally protected waters:

  • Traditional Navigable Waters and Territorial Seas– generally, all such waters are federally protected;
  • Interstate Waters– Proposal removes this category from the definition of “Waters of the U.S.;”
  • Impoundments- impoundments of regulated waterways will be federally protected;
  • Tributaries– a river, stream, or similar naturally occurring surface water channel that contributes perennial or intermittent flow to a traditional navigable water or territorial sea in a typical year either directly or indirectly through other jurisdictional waters (as well as adjacent wetlands).  The proposal excludes ephemeral streams;
  • Ditches- generally, the proposed rule would federally protect ditches that a) are traditional navigable waters; b) subject to the tides; c) constructed in a protect tributary or a protected wetland.  All other ditches are excluded from federal protection;
  • Lakes and Ponds– generally, the rule proposed to federally protect any lake and ponds that a) are traditional navigable waters; b) contribute to perennial or intermittent flow to traditional navigable waters; or c) are flooded by another federally protected waterway.
  • Wetlands- any wetlands that are adjacent to a) traditional navigable waterways; b) tributaries to traditional navigable waters; c) federally protected ditches; d) federally protected lakes and ponds; and e) federally protected impoundments.

The rule also includes “Waters and Features That are Not Waters of the United States.”  Some of the notable excluded categories include:

  • groundwater
  • farm and roadside ditches
  • features that only receive rain water; and
  • stormwater control features

What is Next?

Multiple challenges to the legality of WOTUS remain in the federal district courts.  The ultimate legality of the rule seems destined for the U.S. Supreme Court.  While the litigation continues, the 2015 WOTUS rule remains effective in nearly half the country, at least right now.

After the Trump Administration finalizes its rule redefining the scope of the Clean Water Act, challenges to that rule will also be filed in district courts.  One thing seems certain, uncertainty will persist and litigation will remain for years to come unless Congress were to pass legislation to define the extent of federal jurisdiction under the Clean Water Act and put an end to the litigation.

On March 30, 2018, EPA Administrator Scott Pruitt issued a memorandum eliminating the authority of Regional Administrators to veto decisions by the Army Corps of Engineers to grant a permit for impacts to streams or wetlands.  The veto authority has been re-delegated to the U.S. EPA Administrator.

Any project that results in a discharge of dredged or fill material into waters of the U.S. must obtain a permit from the Army Corps of Engineers under 404 of the Clean Water Act (CWA).  Under the CWA, EPA is given authority to potentially veto the Army Corps issuance of a 404 permit if EPA determines it the permit will allow unacceptable impacts to waters of the U.S.

Administrator Pruitt’s memo states the change in control was to “restore regulatory certainty and promote the rule of law.”  However, the current regulatory uncertainty does not stem from vetoes of issued permits.  Rather, the regulatory uncertainty stems from the ongoing litigation associated with the Obama Administrations Waters of the U.S. Rule which defined the scope of federal jurisdiction under the CWA. (See prior post)  That uncertainty is likely to persist due to ongoing litigation in multiple courts.

EPA Spokesperson downplayed the significance of the memorandum:

This memo explains that jurisdictional determinations that raise significant issues or technical difficulties should be handled in a consistent and uniform manner, particularly during the WOTUS rulemaking,” EPA spokeswoman Liz Bowman said. “Regions will absolutely be involved in the process and work closely with the administrator’s office when doing the work to assess jurisdiction for very select, and often rare, cases.”

The authority under Section 404(c) of the CWA has rarely been used by EPA.  According to EPA’s webpage, the authority has only been used thirteen (13) times since 1970.

On January 22, 2018, the Supreme Court ruled in National Assoc. of Manufacturers v. Department of Defense that federal district courts have original jurisdiction to hear challenges to the 2015 Obama Administration Waters of the U.S. (WOTUS) rule which defined the extent of federal jurisdiction over streams and wetlands under the Clean Water Act.  After the ruling, the Trump Administration was concerned that the 2015 WOTUS Rule may be effective before it completes it’s own process to remove the rule and promulgate its own rule defining the extent of federal jurisdiction over waters in the United States.  

On February 6th, the EPA and Army Corps of Engineers adopted a new rule which establishes an "applicability date" of the 2015 WOTUS Rule.  The applicability date as established by the rule is February 6, 2020 which will provide time for the Trump Administration to complete the process of unwinding the 2015 WOTUS Rule and adopt its own rule defining federal jurisdiction.

The effective date of the 2015 WOTUS Rule was August 28, 2015, however, the Agency’s assert that the 2015 WOTUS Rule did not establish an "applicability date."  Therefore, the EPA and Army Corps assert that, until the applicability date passes, the Agencies will define waters and wetland falling under federal jurisdiction “consistent with Supreme Court decisions and practice and as informed by applicable agency guidance documents (the 2003 and 2008 guidance documents) as the agencies have been operating pursuant to the Sixth Circuit’s October 9, 2105, order, and the North Dakota district court’s injunction.” (The North Dakota District Court issued an injunction preventing implementation of the 2015 WOTUS Rule).

The Trump Administration believes the "applicability" rule allows the regulatory interpretation of jurisdiction under the Clean Water Act in effect prior to the 2015 WOTUS Rule to remain in place.  It is very likely this rule will also be challenged on the basis the August 28, 2015 effective date of the 2015 WOTUS Rule cannot be delayed in this manner.

This week the U.S. Supreme Court ruled in Nat’l Ass’n of Mfrs. v. Dep’t of Def., No. 16-299 that district courts have jurisdiction to hear challenges to any rule that attempts to define "Waters of the United States" for purposes of determining the scope of coverage of the Clean Water Act.  As detailed on this blog previously, ever since the Supreme Court’s prior decision in Rapanos, there has been tremendous uncertainty as to which streams and wetlands fall under federal jurisdiction.

The Obama Administration attempted to end the uncertainty by through the Clean Water Rule which broadly defined the federal jurisdiction.  Even before the rule went into effect, multiple legal challenges were filed seeking to block the rule.  

Before a decision could be reached on the merits of the rule, the proper venue for challenges to the rule had to be decided.  The Sixth Circuit ruled the proper venue was in the circuit court of appeals, not district courts.  However, the Supreme Court overturned the lower court ruling sending the challenge back to district courts.  

The ruling also removes the Sixth Circuit’s injunction against administering the Clean Water Rule.  With the injunction removed, the Clean Water Rule becomes effective in all but 13 states (Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming).  These states are subject to a separate preliminary injunction which was issued by the federal district court in North Dakota. 

The Trump Administration also issued a rule to unwind the Clean Water Rule which will also likely be challenged, now in district courts.  The Administration has promised a second rule defining the scope of jurisdiction more narrowly than the Clean Water Rule.  

What the Supreme Court decision means is the district courts will likely be awash in legal challenges to both the Obama Administrations Clean Water Rule as well as the Trump Administration’s rules.  It will take years for all this litigation to percolate back up to the Supreme Court for a ruling on the merits.  In the meantime, industry and land owners will be forced to navigate uncertainty.  

The Trump Administration has promised massive deregulation, in particular reductions in environmental regulations. A major target of the Trump Administration’s deregulation agenda is the Obama Administration’s Waters of the U.S. Rule (WOTUS) which defines which wetlands and streams are federally regulated.

However, as described in this post, despite the controversy, all of the regulatory activity over the last several years really just leaves us in the status quo.

CWA Defines Jurisdictional Waters

Section 301(a) of the Clean Water Act (CWA) prohibits discharges of pollutants to “navigable waters” without a permit.  See, 33 U.S.C. Section 1311(a), 1362(a).   The CWA defines “navigable waters” as “waters of the United States…” See, 33 U.S.C. Section 1362(7)

However, what exactly constitutes “waters of the United States” has been controversial since passage of the CWA in 1972.

Supreme Court Weighs in Three Times

The Supreme Court has addressed the issue of “waters of the U.S.” on three separate occasions:

  • Adjacent waters- In the Court’s initial decision, it captured the issue of the extent of federal jurisdiction succinctly- “Between open waters and dry land may lie shallows, marshes, mudflats, swamps, bogs–in short, a huge array of areas that are not wholly aquatic but nevertheless fall far short of being dry land.  Where on this continuum to fine the limit of “waters” is far from obvious.” The Court said the term “navigable” in the statute is of little import.  The history of the CWA shows Congress intended broad regulations of waters. In this case, the Court concluded the wetlands adjacent to “waters of the U.S.” were federally regulated.  See, United States v. Riverside Bayview Homes 474 U.S. 121 (1985)
  • Habitat for Migratory Birds- The Court determined the Army Corps went too far trying to assert federal regulation over intrastate waters on the basis the waters provide habitat for migratory birds. SWANNCC v. U.S. Army Corps of Engineers, 531 U.S. .159 (2001)
  • Scalia and Kennedy Tests-  The third time the Court visited the issue it could not get five justices to agree on the extent of federal jurisdiction under the CWA.  Two tests emerged- Justice Scalia’s and Justice Kennedy’s.  Justice Scalia limited federal jurisdiction to navigable waters, adjacent wetlands and non-navigable streams that are permanent flow year round or at least seasonally. Justice Kennedy extended jurisdiction further, to any waters with a “significant nexus” to navigable waters.  Rapanos v. U.S., 547 U.S. 715 (2006)

Post-Rapanos the uncertainty and litigation continued over the extent of federal regulation.

Obama WOTUS Rule

In 2015, the Obama Administration attempted to put an end to the uncertainty by defining “waters of the U.S.” by rule (WOTUS).  Under the proposal federally regulated waters included the following:

  • Streams with perennial, intermittent or ephemeral flow
  • Defined bed, bank and an ordinary high water mark
  • Contributes flow, either directly or through another water, to a jurisdictional water
  • Part of a network that drains to a jurisdictional water
  • Excludes man-made ditches

Those opposed to the rule felt any small stream or water could meet the definition triggering federal regulation over even incidental creeks and streams or even drainage ditches.

The rules was immediately subject to over 20 legal challenges.  On October 9, 2015 the Sixth Circuit issued a stay of the effectiveness of the rule while its legality was determined.

Litigation is before the Supreme Court to determine not the legality of the rule, but the proper venue the rule can be challenged.  Despite those who argue the Trump Administration is rolling back protections of waterways, the WOTUS rule never went into effect.  Instead, we still determine the extent of federal jurisdiction using the Scalia and Kennedy tests from Rapanos.

Trump Executive Order

Despite the fact the WOTUS rule was not in effect, on February 28, 2017, President Trump issued an executive order titled “Restoring the rule of Law, Federalism and Economic Growth by Reviewing the “Waters of the U.S. Rule.”

The Executive Order had two goals:

  1. Rescind WOTUS;
  2. Issue an new rule interpreting “Navigable Waters” consistent with Justice Scalia’s test in Rapanos.

Step 1- Rescinding WOTUS

July 27, 2017, EPA proposed revocation of WOTUS.  EPA accepted public comments on the proposed rule through September 27th.

Step 2- Propose a New Definition of WOTUS

The next step will be for EPA to propose a definition of the rule that drops the Kennedy “significant nexus” test and limits jurisdiction to the test articulated by Justice Scalia.  However, similar to WOTUS, this rule will almost certainly face numerous legal challenges.

Back to the Beginning?

While the legal challenges work their way through the courts over the next several years, the law will not have changed since Rapanos was decided in 2006.  Both the Kennedy and Scalia tests for jurisdiction will be used by all circuits.

For over forty years the issue of how far to extend federal jurisdiction over waters has not been conclusively decided.  It appears this issues will not have greater clarity for the foreseeable future.

Developments that have small impacts to wetlands (typically around 1/2 acre or less) or streams (typically around 300 feet or less) have been able to qualify for expedited permitting known as Nationwide Permits (NWP).  Projects with greater impacts must obtain individual wetland or stream permits known as a 404 Army Corps Permit and 401 Ohio EPA Water Quality Certification (click here for Basics of Wetland Permitting).

Most developers try to arrange their development projects to stay under NWP thresholds if at all possible due to the time and cost savings associated with expedited permitting, which include:

  • Time Savings- NWP time frame 3-6 months versus 12-18 months for individual 404/401
  • Costs Savings- Permitting preparation range can be from $8,000 to $15,000 or more in cost savings just in permit preparation costs

The process for developing NWPs starts with the Army Corps of Engineers proposing NWP for the entire country under its 404 Clean Water Act authority.  Each individual state has the option of placing restrictions on usage of the NWPs under its 401 Clean Water Act authority.  The NWPs once finalized are effective for five years.

On March 17, 2017, Ohio EPA finalized its 401 water quality certification for the 2017 NWP.  The 2017 new NWPs are effective from March 19, 2017 through March 18, 2022.  

Under the new 401 water quality certification, Ohio EPA has placed significant limits on the use of the expedited permits for impacts to high quality streams in Ohio.  The Agency has developed a color coded map that designates areas into three categories:

  • Ineligible Areas (Purple)– Any impacts to streams in these areas are ineligible for coverage under NWP.  Any project with stream impacts in these areas must pursue an individual 404/401 permit.
  • Possibly Eligible Area (Yellow)–  Any impacts to streams in these areas require additional work before an applicant will be eligible for a NWP.  The applicant must:
    • Take pH values
    • Perform a habitat assessment- Qualitative Assessment Habitat Evaluation Index (QHEI) or Headwater Habitat Evaluation Index (HHEI) assessment of the stream. 
  • Eligible Areas (No color code)– any proposed  impact to streams within the project area are eligible for NWP coverage.

 In Northeast Ohio, the much of the Rocky and Cuyahoga River watersheds are color coded purple (ineligible for NWPs).  These new restrictions will have significant consequences for developers and property owners throughout Ohio.

On January 20th, President Trump’s Chief of Staff, Reince Priebus issued a Memorandum to the Heads of Executive Departments and Agencies imposing a regulatory freeze. There appears to be a lot of confusion among environmental attorneys and consultants as to whether the freeze applies to the Army Corps of Engineers (ACOE) Nationwide Permits (NWP).  

NWP are authorizations to fill wetlands and/or impact streams for certain projects that have limited impacts.  NWP are general permits that allow projects to bypass more complicated and costly individual permitting.  The NWPs are a key authorization necessary to allow projects to move forward. Without effective NWP a project only alternative was to seek an individual 404 permit which takes months.

The freeze applies to recently enacted regulations that had not taken effect by the date of the memorandum.  The new NWP were published in rule on January 6, 2017 but will not be effective until March 19, 2017.  Based upon the publication date, the NWP regulation would be subject to the freeze.

Federal agencies can petition the Office of Management and Budget (OMB) for a special exemption from the regulatory freeze.  The ACOE filed for and was granted an exemption so the 2017 NWP will go into effect on Marcy 19, 2017 which was the original effective date.  The ACOE issued a notification last week that it was granted an exemption from the freeze.

I have seen e-mails and memorandum circulating indicating NWP may not be available this spring due to the freeze.  That now appears not to be the case.  

[Photo courtesy Junior Libby]

On October 31, the Army Corps of Engineers ("ACOE") issued new guidance as to the types and prioritization of jurisdictional determinations (JDs).  Regulatory Guidance Letter (RGL) 16-01 "Jurisdictional Determinations" has very little new guidance in reality.  However, some key language in the RGL makes clear the real purpose behind the RGL.  

What is a Jurisdictional Determination?

A Jurisdictional Determination (JD) is an official determination of the ACOE as to whether wetlands or streams fall under federal jurisdiction pursuant to the Clean Water Act.  The Corps practice has been to issue either "Approved JDs" or "Preliminary JDs."  

An "Approved JD" is a final legal determination that there are, or that there are not, wetlands or streams under federal jurisdiction. See, 33 U.S.C. 331.2 The "Approved JD" will also identify the geographic limits of the wetlands or streams on the property.  An "Approved JD" can be either issued as a a "Stand Alone Approved JD" or it can be associated with a permit action.  

A "Preliminary JD" is used to expedite the permitting process.  It does not take as much time to issue a "Preliminary JD" because the ACOE simply presumes all the wetlands and streams on the property are jurisdictional.  By presuming all wetlands/streams are under federal jurisdiction, a "Preliminary JD" negates the need for a site visit by the ACOE which expedites the permitting process.  The "Preliminary JD" also will delineate the limits of wetlands on the property.

Hawkes Decision

In United States Army Corps of Engineers v. Hawkes the Supreme Court concluded that JDs issued by the ACOE constitute final agency action under the Administrative Procedure Act thereby allowing immediate review in Court.  This was a big win for property owners who were previously left with administrative appeals before the Army Corps of Engineers to challenge JDs.  

The fact pattern in the Hawkes decision sheds light as to why the ACOE decided to issue the regulatory guidance letter.  The landowner in Hawkes was facing a long and expensive permitting process to allow impacts to wetlands on its property.  Prior to initiating the permitting process, the landowner sought a JD with the hope the wetlands would be determined non-jurisdictional.  When the ACOE determine the wetlands were, in fact, jurisdictional the landowner sought to challenge the determination in Court rather than through an administrative appeal before the ACOE.

Now that the Supreme Court determined JDs can be challenged in Court, the ACOE was concerned that landowners would have a strong incentive to request JDs only to set up legal challenges in Court to the ACOE’s jurisdiction.

Real Purpose Behind RGL 16-01

RGL 16-01 is the first RGL issued during the Obama Administration and the first RGL since 2008.  The stated purpose of RGL 16-01 is to clarify the differences behind the an "Approved JD" versus a "Preliminary JD."  The ACOE states the clarification will help the public choose which type of JD may be appropriate for their project.  

The reality is there was little confusion between the types of JDs.  The real purpose of the JD can be found in the following sentence on the first page of the RGL:

"The district engineer should set reasonable priorities on the district’s workload and available resources.  For example, it may be reasonable to give higher priority to a JD request when it accompanies a permit request."

This statement makes clear that the ACOE will prioritize processing "Approved JD" request with a permit application versus "Stand Alone Approved JD" request.  The goal is to avoid issuing "Approved JDs" to landowners who may be making the request simply to challenge the JD in court and avoid permitting all together if the court challenge is successful.

Those seeking an "Approved JD" without submitting a permit application may be waiting a long time to get their determination.

In a very significant case for property owners and developers, the U.S. Supreme Court issued its decision today that Army Corps Jurisdictional Determinations (JDs) are final agency actions which can be challenged in Court.  In U.S. Army Corps of Engineers v. Hawkes, the Court determined that JDs meet the test for final agency actions:

  1. A JD marks the consummation of the Agency’s decision making process; and 
  2. JDs determine rights or obligations from which legal consequences flow

Federal Jurisdiction under the Clean Water Act

It has been well documented on this blog that whether a stream or wetland falls under the jurisdiction of the Clean Water Act (i.e. federally regulated) has been a complex issue.  There have been numerous challenges to the Army’s Corps of Engineer’s (ACOE) jurisdiction under the Clean Water Act.  

In a prior decision, the Supreme Court in Rapanos created the "Significant Nexus Test" as the means to determine jurisdiction.  The test involves balancing various factors as to how closely related small water bodies are to larger water bodies. Under the test, a waterway or wetland 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.

The Army Corps has been aggressive in asserting jurisdiction under the Significant Nexus Test.  The Clean Water Rule, currently under appeal before the Sixth Circuit, was the EPA’s attempt to define jurisdiction in conformance with prior Supreme Court guidance.  The Rule has been challenged as going well beyond the Supreme Court’s guidelines for federal jurisdiction under the Clean Water Act.

Jurisdictional Determinations (JDs)

A Jurisdictional Determination (JD) is issued by the ACOE as its determination whether particular property contains federally protected wetlands or streams.  The JD is the ACOE application of the Significant Nexus Test to the property.  Due to the ACOE aggressiveness in asserting jurisdiction, many property owners and developers have wanted to challenge JDs. 

However, a complicating issue for property owners and developers is that the ACOE had maintained that JDs were not final appealable actions that could be challenged in Court.  This left the property owners and developers with a "Hobson choice:"

  • Administratively appeal the JD which means the ACOE makes the decision as to whether the JD is valid;
  • Assert the ACOE is without jurisdiction, proceed with the development and risk enforcement with criminal sanctions or civil penalties; or
  • Comply by submitting a costly permit application (404 permit)

None of these choices were deemed attractive.  With the Court’s decision in Hawkes, Courts can now hear challenges to JDs.  

Due to the subjective nature of the Significant Nexus Test, property owners and developers should be entitled challenge ACOE determinations in court.  Today’s decision will likely result in a flood of challenges to JDs in federal courts.

 

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.