Landowners Have Right to Sue Over Wetlands Determinations-U.S. Army Corps

Landowners may sue over findings by federal regulators that their properties contain wetlands or waterways that fall under Clean Water Act (CWA) protections, according to a Nov. 1 regulatory guidance letter issued by the U.S. Army Corps of Engineers.

The letter confirms the right of property owners to sue over wetlands findings that could require them to get a Clean Water Act permit. The guidance came in response to the US Supreme Court’s June ruling in U.S. Army Corps of Engineers v. Hawkes Co.

In Hawkes, the Supreme Court held that Clean Water Act jurisdictional determinations (JDs) issued by the corps are final agency actions subject to judicial review under the Administrative Procedure Act (APA). “The guidance takes effect now, and it was signed yesterday and posted today,” Doug Garman, corps spokesman, told Bloomberg BNA November 1.

Although the Clean Water Act or the Rivers and Harbors Act do not require JDs, such a finding indicates that the corps will require the landowner to obtain a Section 404 dredge-and-fill permit for activities that may affect any wetlands or waters on the property.

The corps explained that approved and preliminary JDs specify what geographic areas will be treated as subject to regulation by the corps under either the Clean Water Act or the Rivers and Harbors Act, or both. The letter described differences between the two types of findings and noted when it may be appropriate to issue an approved finding versus a preliminary or informal finding. The underlying definitions of jurisdictional determination remain unchanged, the agency added.

The difference now is that “the Hawkes decision made all approved [jurisdictional determinations] able to be challenged in court without going through permit process or even the administrative appeal process,” Garman explained. “However, the recipient of an approved JD can still go through the corps administrative appeal process if they so choose, despite the Hawkes decision. They do not have to go to court to challenge the approved JD if they choose to proceed with the administrative appeal.”

Source: Nebraska Rural Radio Association

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