Jurisdictional Determinations and the Clean Water Act


5595038651_91fe710f12Under the Clean Water Act, the Army Corps of Engineers may issue a site-specific Jurisdictional Determination (JD) delineating waters of the United States subject to federal regulation on private land. A Determination effectively prohibits the land owner from using the regulated portion of his land without a federal permit. In apparent conflict with the Supreme Courts unanimous decision in Sackett v. EPA, the Ninth and the Fifth Circuits refuse to review such Determinations under the Administrative Procedure Act, holding they create no legal consequences and are not final agency action. According to these Circuits, a landowner may bring a challenge to such a Determination in court only after making a prohibitively costly and time-consuming application for a permit, which the Corps has issued or denied. This application would be unnecessary, and outside the agencys power to decide, if the JD is wrong, as Petitioner contends in this case, Kent Recycling v. U.S. Army Corps of Engineers. Moreover, in conflict with other Circuits, the Fifth Circuit held below that a due process challenge to a JD is also subject to this onerous permit requirement to establish final agency action under the APA.

In this case, the U.S. Army Corps of Engineers (which shares jurisdiction with EPA over CWA enforcement) made a Jurisdictional Determination that a portion of a parcel of property of which petitioner is the contract vendee is subject to CWA regulation and cannot be developed without a permit. Obtaining a permit is onerous. In Rapanos v. United States, 547 U.S. 715 (2006), in which we also filed an amicus brief, the Court noted that the average applicant for an individual permit spends 788 days and $271,596 in completing the process.

Atlantic Legals amicus brief, filed on December 1, 2014, in support of a petition for certiorari before the Supreme Court, was on behalf of a couple who bought property in Weston, Connecticut several years ago. Our brief highlights and puts a human face on the barriers and frustrations faced by landowners whose property is deemed to contain jurisdictional wetlands by either the Army Corps of Engineers or the EPA. In the case of this couple, they spent paid slightly over $210,000 for 14 acres of undeveloped land in a suburban community, intending to build a $300,000 house on it. They spent approximately four years and $200,000 to obtain local building department and conservation commission approval. Then, when they started repairing a pre-existing gravel driveway leading from the public street to the site of their house, they received a cease and desist letter from the Army Corps of Engineers, asserting probable Clean Water Act jurisdiction and threatening fines of $37,500 per day and possible imprisonment if they did not immediately stop work. Four years later, after they exhausted all administrative appeals, the Corps of Engineers commanding regional officer affirmed the district engineers Jurisdictional Determination that the property contains or is connected to waters of the United States and is therefore subject to federal jurisdiction. The decision affirming the district office decision, and the underlying regulations, state that the decision is the final administrative finding of jurisdiction. There are no more administrative appeals available.

The Foundation argues that, as with the compliance order in Sackett, the JD in this case has immediate and direct legal consequences. It is, in fact, an adjudicative decision that applies the law to the specific property and is legally binding on the agency and the landowner, thereby fixing a legal relationship, the sine qua non of final agency action.

To view the Foundations brief, please click here.