Recourse Needed for Water Jurisdiction Findings: Briefs

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By Amena H. Saiyid

March 4 — Property owners need legal recourse if the federal government determines their land contains wetlands making it subject to Clean Water Act protections because those determinations can affect what they can do with their land, attorneys representing landowner and developer interests said in their brief to the U.S. Supreme Court.

For that reason, the attorneys argue that an approved jurisdictional determination (AJD) by the U.S. Army Corps of Engineers should be considered a “binding” final agency action that they can challenge in court. They said state and local governments use such determinations to assure compliance with regulatory programs.

In fact, the attorneys point to the corps's own regulatory guidance, which finds approved jurisdictional determinations to represent the official definitive position of the government that can be used “in any subsequent federal action or litigation regarding the case.”

“The government argues AJDs are not judicially reviewable because they do not direct recipients to take any particular action,” wrote Virginia Albrecht, special counsel with the Washington, D.C. office of Hunton & Williams LLP, in the amicus brief on behalf of the Foundation for Freedom and Economic Progress and Utility Water Act Group. “But AJDs establish sharp lines that have direct, powerful, and coercive effects on how their recipients proceed.”

Albrecht, who is the lead author of the brief along with other Hunton attorneys, backed the position taken by Hawkes Co., the Minnesota-based peat farming operation. UWAG represents energy companies, while FFEP represents landowners.

Hawkes is challenging a corps determination that wetlands on its property can be regulated under the Clean Water Act, which would require the company to obtain a Section 404 dredge-and-fill permit prior to extracting peat from the land.

The principal question presented by the corps at the Supreme Court's March 30 oral arguments is whether an approved jurisdictional determination is final agency action subject to judicial review. The U.S. Court of Appeals for the Eighth Circuit held in Hawkes such a determination is final agency action; the Fifth and Ninth circuits have held it is not .

Government Argues Review Unnecessary

The corps maintained in its opening brief that judicial review is unnecessary. Specifically, it wrote that although an AJD marks the consummation of the agency's decisionmaking process, no “rights or obligations have been determined” by the determination and no “legal consequences will flow” from it. This argument is based on the Supreme Court's 1997 ruling in Bennett v. Spear (520 U.S. 154 (1997)) which established a two-prong test for determining when an agency action is final—namely, when it marks “the consummation of the agency’s decisionmaking process” and is “one by which rights or obligations have been determined, or from which legal consequences will flow.”

Jurisdictional Determination a ‘Formal' Investigation

Albrecht said the process of determining jurisdiction is a formal investigation that describes the boundaries of the federally protected waters or wetlands “in inches not acres.”

Other attorneys backing Hawkes note the Clean Water Act is “a strict liability statute” that prohibits the discharge of any pollutant into “navigable waters” except in compliance with a permit issued under the act.

“Accordingly, entities conducting any kind of activity on the landscape must tread lightly, taking care to identify any areas that may be deemed `navigable waters' and either avoiding such areas or obtaining a permit if they plan to discharge to them,” Albrecht wrote.

For instance, members of the National Association of Home Builders have to be cognizant of properties containing federally protected waters, said Thomas Ward, the association's vice president for legal advocacy, in his amicus brief. The process of identifying federally protected waters requires hiring consultants—engineers, scientists and regulatory specialists—whose decisions on jurisdiction may be at odds with the corps. In such instances, Ward said, the developers have no choice but to turn to the corps to determine if wetlands or waters on their property are jurisdictional.

No Good Deed Goes Unpunished

Albrecht cites many instances where “a landowner relied in good faith on an expert’s report to avoid jurisdictional waters by staying within areas the consultant had concluded were not ‘waters of the United States,' only to face an enforcement action claiming the areas in question were in the agency’s view jurisdictional.”

To get the legal recourse they seek, the Justice Department proposed that property owners either apply for a permit and then sue to prove that no permit is needed or trigger an enforcement action by filling areas deemed jurisdictional and then challenging jurisdiction as a defense against enforcement. She termed the government's proposed options as “nonsensical, time consuming and very costly” as well as an inadequate legal remedy.

Congress enacted the judicial review provisions of the APA to provide a check on “administrative extravagance” to which the executive branch has been prone over the years, Albrecht said. The court “as a matter of sound statutory interpretation” should grant judicial review when no legal remedy is available, as allowed under Section 704 of the Administrative Procedure Act, she said.

States Raise Bennett, Federalism Concerns

In addition to industry groups, state and local governments urged the U.S. Supreme Court to affirm the Eighth Circuit's ruling.

In their amicus brief, West Virginia, Ohio and 21 other states wrote that an AJD meets the second prong of the Bennett v. Spear test—stating that an agency action is final when it is “one by which rights or obligations have been determined, or from which legal consequences will flow” because it immediately limits the rights of a landowner, including a state or state agency, in their property. A landowner is either forced to apply for a permit, refrain from developing the property or develop the property subject to civil or criminal penalties.

Moreover, because either a positive or a negative determination binds the corps for five years, legal consequences flow from that decision to both the regulator and regulated, the states wrote.

The states also wrote that “the Corps’ position would raise serious federalism concerns in light of the States’ traditional role in land and water use management.”

Precluding immediate review of an AJD interferes with state authority over land and water use, and Congress has not indicated its intent “to upset the balance of federal-state powers by allowing the Corps to defer judicial review of its jurisdictional determinations.”

Planning Certainty Needed

Groups representing state, county and city governments, as well as mayors and municipal lawyers, wrote in their brief that, as both landowners and planning bodies, they need the certainty prompt judicial review provides.

From the landowner perspective, they pointed to Fairbanks North Star Borough v. U.S. Army Corps of Engineers, 543 F.3d 586, 67 ERC 1946, 2008 BL 205569 (9th Cir. 2008), as an example of why immediate judicial review is necessary. The corps issued a final jurisdictional determination for two acres the borough sought to develop into athletic fields and a playground. The district court ruled it did not have subject matter jurisdiction and the Ninth Circuit affirmed based on the second prong of Bennett v. Spear.

“A local government may be forced to spend limited public funds to obtain an unnecessary permit, or may choose to abandon an otherwise worthy project,” which the borough did, the groups wrote.

State or local governments may also risk losing federal funds or grants needed to complete work on bridges or highways if they proceed without a permit, they wrote.

Lastly, the groups wrote that immediate judicial review of jurisdictional determinations is necessary to plan for future projects, work with businesses and foster favorable economic development conditions.

Joseph Jacquot and attorneys from Foley & Lardner LLP authored the groups' brief.

Administrative Appeal Remedy Exists

An approved jurisdictional determination, the DOJ said, is a corps document, valid for five years, that states the presence or absence of waters of the U.S., as defined under 33 U.S.C. § 328, on a parcel, and is a written statement and map identifying the limits of these waters on a parcel of land. Such a determination, which can be challenged through an administrative appeal, does not require that a property owner seek a permit for a particular activity in the wetlands or waters under scrutiny, according to the Justice Department.

Noting that “[n]either the CWA nor its implementing regulations require a landowner to obtain a jurisdictional determination before discharging dredged or fill material,” the DOJ added, “The Corps’ issuance of a jurisdictional determination does not expand or con-tract the landowner’s options; it simply provides additional information that the landowner may find useful in choosing between those alternative courses of conduct.”

By Amena H. Saiyid

—With assistance from Lars-Eric Hedberg

To contact the reporter on this story: Amena H. Saiyid in Washington at

To contact the editor responsible for this story: Larry Pearl at

For More Information

The amicus brief of the Foundation for Environmental and Economic Progress and Utility Water Act Group's in U.S. Army Corps of Engineers v. Hawkes Co. is available at

The opening brief of the U.S. Army Corps of Engineers in U.S. Army Corps of Engineers v. Hawkes Co. is available at

The amicus brief of the National Home Builders Association in U.S. Army Corps of Engineers v. Hawkes Co. is available at

The amicus brief of West Virginia and 22 other states in U.S. Army Corps of Engineers v. Hawkes Co. is available at .

The amicus brief of the state and local governments in is available at .