November 1, 2016

Corps issues questionable guidance on Jurisdictional Determinations

By M. Reed Hopper Senior Attorney

When we won a unanimous decision in the U.S. Supreme Court in Army Corps v. Hawkes, earlier this year, some wondered how the Corps would respond. The concern was natural given the government’s argument in court that the issuance of Jurisdictional Determinations (JDs) by the Corps was optional and the Corps might simply refuse to provide JDs if the Supreme Court held they could be challenged in court. However, in response to Hawkes, the Corps issued a Regulatory Guidance Letter (RGL) today that leaves the JD program intact.  But the guidance is not without problems.

The RGL does not affect the protections afforded landowners under the Hawkes decision.  Formal Approved Jurisdictional Determinations will continue to be reviewable in court as the U.S. Supreme Court determined. However, the Corps has made a legal and strategic error in its use of informal Preliminary Jurisdictional Determinations (PJDs).  According to the Corps:

(6)  accepting a permit authorization (e.g., signing a proffered individual permit) or undertaking any activity in reliance on any form of Corps permit authorization based on a PJD constitutes agreement that all aquatic resources in the review area affected in any way by that activity will be treated as jurisdictional, and waives any challenge to such jurisdiction in any administrative or judicial compliance or enforcement action, or in any administrative appeal or in any Federal court.

This waiver provision is wishful thinking. It’s not binding on a court. The courts have the power to determine if and when federal jurisdiction may be challenged, not the Corps.  Additionally, this requirement violates the “unconstitutional-conditions doctrine” that states the government cannot condition a person’s receipt of a governmental benefit on the waiver of a constitutionally protected right.  Landowners virtually always have the right to challenge federal jurisdiction when the government imposes restrictions on the use of their land.  Finally, if the Corps deems the Preliminary Jurisdictional Determination binding as to jurisdiction, as this waiver provision suggests, the PJD would have an immediate legal effect (much like an Approved Jurisdictional Determination) that could be challenged in court under the Administrative Procedure Act.

In sum, landowners may continue to rely on Approved Jurisdictional Determinations as a definitive statement of federal jurisdiction over “wetlands” and “other waters” under the Clean Water Act. A landowner who disagrees with the the Corps’ conclusions in the Approved Jurisdictional Determination may seek an administrative appeal and ultimately challenge the determination in federal court. Reliance on Preliminary Jurisdictional Determinations is more problematic because of the Corps’ waiver provision. Landowners way wish to forego the Preliminary Jurisdictional Determination in favor of an Approved Jurisdictional Determination as the guidance allows.

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