Sheppard Mullin Richter & Hampton LLP
November 6, 2014
A landfill developer has asked the Supreme Court to review a decision of the Fifth Circuit holding that a jurisdictional determination by the U.S. Army Corps of Engineers is not final agency action subject to judicial review. The Supreme Court previously held, in its 2012 Sackett opinion, that an EPA compliance order issued under the Clean Water Act is final and immediately reviewable under the Administrative Procedure Act. But, so far, the Courts of Appeals have declined to extend Sackett to allow immediate review of a jurisdictional determination, which represents the Corps’ findings about whether a property contains wetlands or other waters of the United States subject to the Corps’ regulatory jurisdiction under Clean Water Act section 404.
The Fifth Circuit, in July, held that the developer, Kent Recycling Services LLC, and the property owner could not challenge the Corps’ jurisdictional determination that certain property in Louisiana, which Kent wished to purchase and develop as a landfill, contained jurisdictional wetlands. Instead, the court said, Kent must first apply for a section 404 permit to fill the wetlands, and then bring its challenge to the JD as part of an action seeking judicial review of the Corps’ permit decision. The essence of Kent’s argument, which relies heavily on Sackett, is that this approach makes no sense because a permit—along with the lengthy and expensive process required to obtain a permit decision—is required only if the JD is valid. Furthermore, the JD itself, like the compliance order in Sackett, imposes immediate costs and obligations on the property owner and subjects it to significant liability if it engages in certain activities without a section 404 permit.
The company filed its petition for writ of certiorari with the Supreme Court on October 28.
This article is being provided for informational purposes only and not for the purposes of providing legal advice or creating an attorney-client relationship. You should contact an attorney to obtain advice with respect to any particular issue or problem you may have. In addition, the opinions expressed herein are the opinions of Mr. Rusk and may not reflect the opinions of Synergy Environmental, Inc., Sheppard Mullin Richter & Hampton LLP or either of those firms’ clients.