Two groups of states, one led by West Virginia and one by North Dakota, have filed amicus briefs in the U.S. Supreme Court supporting landowners claiming a right to challenge jurisdictional determinations by the Corps of Engineers. Likewise, amicus briefs were submitted by the National Association of Homebuilders and the American Farm Bureau Federation.
Historically, developers and others seeking to conduct operations in areas that might contain “waters of the United States” have sought a “jurisdictional determination” from the Corps of Engineers to determine whether a “fill” permit is necessary under § 404 of the Clean Water Act. It is not uncommon for the project proponent and the Corps to disagree; the Corps may take the position that waters will be filled while the project proponent believes that the project will stay outside of jurisdictional waters. Historically, though, where the Corps has determined that a project will intrude on waters of the United States, the project proponent has had no opportunity to challenge that determination without either subjecting itself to criminal penalties or ensnaring itself in years of expensive permit applications and litigation.
The Corps has long taken the position that its jurisdictional determinations are not final agency actions subject to review under the Administrative Procedure Act. Instead, it claims that a project proponent can ignore its jurisdictional determination and proceed with a project at its own risk if the proponent believes that it will be operating outside of jurisdictional waters. Essentially, this devolved into a game “Chicken,” by which the Corps dared project proponents to go forward without Corps approval—something few publicly-traded companies would dare do. Alternatively, the Corps has said that project proponents can complete the project application process and then, when a permit decision is final, challenge the jurisdictional determination which underlies the permit decision. That requires the project proponent to complete an application process and then pursue administrative and judicial challenges thereafter—again, a process that has deterred many projects.
In 2015, the Eighth Circuit Court of Appeals ruled that the Corps’ jurisdictional determinations were immediately challengeable in federal court under the Administrative Procedure Act. See Hawkes Co., Inc. v. U.S. Army Corps of Engineers, 782 F.3d 994 (8th Cir. 2015). That decision is on appeal to the U.S. Supreme Court where states and developers have weighed in on the side of developers. The states have taken the position that absent any judicial review, the Corps’ jurisdictional determinations are not subject to effective review and thereby undermine the sovereignty of states and their agencies.
This article was authored by Robert G. McLusky, Jackson Kelly PLLC.