February 28, 2013

Court says landowner can't challenge wetlands determination!

By M. Reed Hopper Senior Attorney

Some decisions just leave you shaking your head.  Such as today’s decision out of the U.S. District Court in Belle Company v. Corps of Engineers.

In that case, the Belle Company received a permit from the Louisiana Department of Environmental Quality to operate a landfill on private land.  Years later, using a standard found illegal in other jurisdictions, the Corps of Engineers determined the site contains wetlands subject to federal jurisdiction and that Belle needs to apply for a section 404 discharge permit under the Clean Water Act.  Belle sought to challenge the Corps’ Jurisdictional Determination in court only to be told the court could not hear the case because the Jurisdictional Determination was not “final agency action” under the law.

As a general rule, federal agency action may only be challenged in court if it is “final” An action is deemed “final” if the action constitutes the agency’s “final say” on the matter and the action creates or changes some legal obligation on the part of the plaintiff.  A Jurisdictional Determination involves agency experts physically inspecting and testing a site to identify and delineate wetlands according to strict scientific protocols.  The Jurisdictional Determination is determinative as to federal jurisdiction and is binding on the agency.  Therefore, the court held, as it must, that the Jurisdictional Determination completed on the Belle property is the Corp’s “final say” on the matter.  But the dispute centers on whether the determination creates or changes any legal obligations of the landowner.  

In a contortion of logic that can only be characterized as a fiction, the court held the Jurisdictional Determination in Belle had no independent legal effect and, therefore, was not “final agency action” subject to judicial review.  This bizarre conclusion defies the facts.   Whereas Belle had no further legal obligations preventing it from operating a landfill on its property, before the Jurisdictional Determination, Belle must now change its operating plans, reapply to the state for a permit, provide offsetting mitigation, and apply and receive a permit (with conditions) from the Corps at an average cost to the applicant of more than $270,000.  If the Jurisdictional Determination has no legal effect, as the court held, one has to wonder what purpose the Jurisdictional Determination serves. 

PLF filed an amicus brief in this case, urging the court to allow Belle to challenge the wetlands delineation, citing its landmark victory in Sackett v. EPA where a unanimous Supreme Court held that the landowner could challenge a wetlands determination issued by the EPA in the form of compliance order.  A Jurisdictional Determination should be no different.

Hopefully, Belle will appeal the case to the Fifth Circuit Court of Appeals

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