U.S. District Court Denies Review of Corps Wetland Jurisdictional Determination
Posted on October 25, 2013
On August 1, 2013, the U.S. District Court for the District of Minnesota concluded a jurisdictional determination (JD) by the U.S. Army Corps of Engineers (Corps) that a property was subject to the Clean Water Act (CWA) did not constitute final agency action subject to immediate judicial review. Hawkes Co., Inc. v. US. Army Corps of Engineers, — F.Supp.2d —-, 2013 WL 3974484 (D. Minn. 2013). The case involved a proposed peat mining operation on wetlands property in Marshall County, Minnesota. After numerous meetings with plaintiffs, the Corps made a final determination that the property was a “water of the United States” and thus regulated by the Corps under the CWA. Accordingly, any filling of wetlands would require a CWA section 404 permit. Plaintiffs appealed the JD to the U.S. District Court.
In granting the Corps’ motion to dismiss, the court held that although the JD marked the consummation of the Corps’ decision-making process, the JD was still not “final agency action” subject to immediate review under the Administrative Procedure Act (APA), 5 U.S.C. § 704, because it did not determine rights or obligations of the plaintiffs. For example, the court observed, the JD does not itself command a party to do or forbear anything; it is simply “a bare statement of the Corps’ opinion.” Moreover, the plaintiffs retained the ability to challenge jurisdiction when judicial review was appropriate, such as in connection with a section 404 permit application or an enforcement proceeding. The court’s holding accords with numerous federal courts in other circuits that have held that a JD by the Corps is not “final agency action” under the APA.
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