AGC Explains What You Need to Know Today about Federal Jurisdiction over WOTUS
The U.S. Supreme Court has agreed to decide whether an applicant for a Clean Water Act (CWA) Section 404 permit can immediately challenge, in court, a jurisdictional determination (JD) issued by a federal regulator. The justices took up the question because federal appeals courts could not agree on whether a JD is a “final agency action” that can be challenged in federal courts under the Administrative Procedure Act.
The case (U.S. Army Corps of Eng'rs v. Hawkes Co. Inc., U.S., No. 15-290, cert granted 12/11/15) will be heard in the next few months with a decision expected by the end of June 2016.
Although the CWA does not require JDs, if the Corps (or EPA) deems water, wetlands or any wet area on a property jurisdictional (meaning it is a “Waters of the United States” or WOTUS), then it is subject to all of the protections and permitting provisions of the CWA. For example, the owner/operator of a construction site is required to obtain a Section 404 permit prior to discharging dredged material (e.g., excavation) or discharging fill material (e.g., placement of dirt to make dry land) in jurisdictional WOTUS.
If the Supreme Court extends immediate judicial review to JDs, it could provide the construction and development industries with a way to respond, at the outset of the project, to unacceptable delineations that can unilaterally halt or dramatically affect project configurations and the cost, extent and timing of permits. Such a ruling also could allow courts across the country to weigh in on which waters fall under CWA control, which some legal experts are saying might have more of an immediate impact on water law than the hotly contested, and currently stayed, 2015 WOTUS rule (see box below).
The Hawkes case may also allow the Court to clarify or potentially revise the precedent it set in the landmark unanimous 2012 decision Sackett v. EPA, which granted pre-enforcement review of some environmental compliance orders on the basis that recipients faced enhanced fines when enforcement would eventually begin.
Background
The Corps has an administrative appeals process for contesting approved JDs (33 CFR Part 331); in the past, however, traditionally, a Section 404 permit applicant cannot immediately challenge a JD in court. Rather, to obtain judicial review of a JD , an applicant must: (1) continue through the costly and lengthy permitting process (studies put individual Section 404 permit application costs/time at more than $270,000 and more than two years) and obtain a permit based on an unacceptable JD, or be denied a permit; or (2) proceed with excavating or filling waters/wetlands without a permit and face an enforcement action to stop work and pay a penalty (CWA fines may reach $37,500 per day per violation and possible imprisonment).
The specific question in this case is whether the recipient of a JD can sue before the Corps or EPA takes permitting or enforcement action based on the jurisdictional finding. The U.S. Court of Appeals for the Fifth Circuit and U.S. Court of Appeals for the Ninth Circuit previously ruled that a JD is not a reviewable “final action” because it carries no financial penalties or other direct consequences separate from those attached to an ordinary violation of the CWA. However, a 2015 U.S. Court of Appeals for the Eight Circuit decision found that JDs carry significant practical consequences for their recipients and thus are subject to judicial review.
Under Section 704 of the Administrative Procedure Act, judicial review is only available for “final agency action,” which the Supreme Court has defined as “the consummation of the agency's decision-making process” that can determine rights or obligations “from which legal consequences can flow” (Bennett v. Spear, 520 U.S. 154 (U.S. 1997)). The U.S. Supreme Court’s 2012 decision in Sackett v. EPA called the application of this doctrine into question, by holding that the Corps’ issuance of an administrative compliance order was a final agency action subject to immediate judicial review. The Sackett case has allowed groups to challenge in court a federal regulators’ assertion of CWA jurisdiction in a compliance order issued under the CWA, prior to a federal agency initiating an enforcement action. In contrast, the Hawkes case will explore the right for groups to seek judicial review of CWA jurisdictional determinations made outside the context of a compliance order.
Please contact AGC’s Leah Pilconis at pilconisl@agc.org if you have any questions.
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What You Need to Know Today about Federal Jurisdiction over WOTUS Hardly a week passes without some new event involving the federal regulations defining “Waters of the United States” or WOTUS. That key term is supposed to clearly inform the regulated community of what waters and wetlands fall under federal CWA control and permitting, in the first place. However, as widely reported, the new 2015 WOTUS rule, promulgated by EPA and the Corps, is extremely controversial. It is currently in litigation and the U.S. Court of Appeals for the Sixth Circuit has stayed implementation of the rule nationwide, pending further action by the court. Multiple lawsuits are pending in district and appellate courts, leaving the fate of the 2015 rule in limbo. In 2015, Congress held hearings and introduced legislation to set aside the regulation. President Barack Obama vetoed a bill in early 2016 that would have blocked the new WOTUS rule. So what governs now, and what will govern for the foreseeable future? Check out AGC’s WOTUS fact sheet to find some bottom-line answers – click here (scroll down to “Find Information”). |