The Fifth Circuit Court of Appeals has held that a court may not review a determination by the U. S. Army Corps of Engineers (“Corps”) that a particular body of water is subject to jurisdiction under the Clean Water Act because that determination is not a final agency action. Belle Company, LLC v. USACE, Case 13-30262 (5th Cir. July 30, 20140).
Section 404 of the Clean Water Act prohibits the discharge of dredged or fill materials into waters of the United States unless done in accordance with a permit issued by the Corps. Whether a planned project involves waters of the United States is a threshold question regarding whether a 404 permit will be required. Applicable regulations allow the Corps to issue a determination (a jurisdictional determination or “JD”) about whether water body is subject to Clean Water Act jurisdiction.
In Belle Company, two holders of interests in property planned to develop the property, but the Corps’s determination that the parcel contained wetlands hindered their plans. When the parties sued to have the JD set aside the Corps argued that the court could not hear the case because the JD was not a final agency action. The district court agreed and dismissed the case.
In upholding the lower court’s judgment the Fifth Circuit relied on the recent decision by the U.S. Supreme Court in Sackett v. EPA, 132 S. Ct. 1367 (2012) and held that a JD did not meet both criteria of a final action. Although the court found that the JD was the “consummation of the Corps’s decisionmaking process,” after lengthy discussion the court held that the JD was not a final agency action because it was
“not an action by which rights or obligations have been determined, or from which legal consequences flow.”
Sackett surprised many because in that case the Supreme Court held that a compliance order issued by the U.S. Environmental Protection Agency was a final agency action that could be challenged in court. This recent decision in Belle Company is one of a few cases winding through the appellate courts as we refine the boundaries of what constitutes a final, and reviewable, agency action.