Administrative Appeals, Judicial Review and Enforcement

• Author: Stephen M. Johnson
• Pages: 328-376

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Chapter 10

Administrative Appeals, Judicial Review

and Enforcement

When the Corps of Engineers or EPA takes an action under the Clean Water Act, or fails to

take an action, landowners, interest groups, states, and any number of other persons may

seek to challenge the agencies’ action or inaction. Part I of this chapter examines the

administrative and judicial avenues for appealing those decisions.

However, the Corps and EPA are not simply defendants in administrative and judicial

proceedings. Whenever a person fails to comply with the permitting requirements or other

requirements of the Clean Water Act, the agencies can take a variety of administrative or

judicial enforcement actions. Part II of this chapter examines those enforcement options.

I. Administrative Appeals and Judicial Review

A. Administrative Appeals of Corps’

decisions

The Clean Water Act does not explicitly

provide for an administrative process to

review the Corps’ actions in administering

the Section 404 permit program and there

was no administrative appeal process for

the program for the first several decades of

its existence. To the extent that persons

wanted to challenge a Corps decision to

issue or deny a permit or to take some

other action, they could only challenge

those actions in court, if at all. However, in

1999 and 2000, the Corps of Engineers adopted regulations that created an administrative

appeal program for final permit decisions, see 64 Fed. Reg. 11,708 (March 9, 1999) and

final jurisdictional determinations. See 65 Fed. Reg. 16,486 (March 28, 2000). One of the

advantages of the program for the Corps and for landowners is that it should lead to more

uniform and consistent decision-making. As noted in Chapters 4 and 5, absent an appeal,

final permit decisions and final jurisdictional determinations are made at the District level,

Resources

Corps Administrative Appeal Regulations

Fact Sheet and Request for Appeal (Seattle

District of the Corps)

Corps videos describing appeals process

Flow chart of appeal process for permit

decisions and for approved jurisdictional

determinations

RGL 06-01 - Timeliness of a request for

appeal

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by 43 different District Engineers. The appeal process adopted by the Corps provides for

review at the Division level. Since there are only 9 Divisions, as opposed to 43 Districts, the

decision-making should be more uniform and consistent. (Note: Although there are 9

Divisions, the Transatlantic Division does not issue Section 404 permits, since the Division

only encompasses the Middle East and Asia).

Since administrative processes are generally quicker and less expensive than judicial

processes, the administrative appeal process should also save the Corps and challengers

time and money by keeping challenges out of court. It should also provide the Corps with

an additional opportunity to develop a record that can withstand judicial challenge if the

agency’s decision is ultimately contested in court.

1. Reviewable Actions

The Corps’ regulations limit the agency

actions that can be appealed

administratively. Under the regulations,

landowners and permit applicants can

appeal: (1) an approved jurisdictional

determination; (2) a written denial of an

individual permit application with prejudice

(a permit denial); and (3) an individual permit or letter of permission that the applicant has

declined to accept because he has objections to the terms and conditions of the permit (a

declined permit). See 33 C.F.R. § 331.2.

Consequently, a preliminary jurisdictional determination, in which the Corps indicates that

there may be jurisdictional waters on a parcel of property or which indicates the

approximate location of jurisdictional waters on a parcel of property, cannot be appealed

administratively, while an approved jurisdictional determination can be appealed

administratively. Id. As noted in Chapter 4, supra, an approved jurisdictional determination

is an official determination by the Corps that there are, or are not, jurisdictional waters on a

parcel of property, and outlining the limits of the waters. See 33 C.F.R. § 331.2.

Regarding permit decisions, if the Corps denies an individual permit request without

prejudice, for instance, because a state denied Section 401 certification or refused to

certify that the discharge was consistent with a coastal zone management plan, the Corps’

permit denial cannot be administratively appealed. Id. The Corps’ denial of an individual

permit request can only be challenged administratively when the Corps denies the permit

with prejudice. Further, if the Corps determines that a general permit does not authorize

a particular activity, that decision cannot be appealed administratively. The administrative

appeal process is limited to individual permit decisions. Id.

In addition to limiting the actions that can be challenged administratively, the regulations

Appealable action means an approved

jurisdictional determination, a permit

denial, or a declined permit. 33 C.F.R.

§ 331.2.

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limit who can raise those challenges. Only “affected parties”, defined as permit applicants,

landowners or other persons with a substantial and identifiable legal interest in the property

at issue, can bring administrative challenges. Id. Neighbors, competitors, interest groups,

state or local governments, and other interested parties can only challenge actions of the

Corps judicially, if at all.

2. Review Process

At the time that the Corps makes a decision at the District level that can be appealed under

its regulations, the agency provides a notice to the person to whom the decision is directed

that the decision can be appealed, a fact sheet describing the appeal process, and a form

that the person can use to request an appeal of the decision. See 33 C.F.R. § 331.4. If the

permit applicant or landowner wishes to appeal, they must file a request for appeal, stating

the reasons for the appeal, within sixty days of the notice from the Corps. Id. § 331.6.

While EPA’s administrative appeal process and the administrative appeal processes of

many agencies provide for review and decision-making by a centralized body, usually at

the headquarters level, the Corps’ regulations provide for review and ultimate decis ion-

making on appeals at the Division level. Id. § 331.9. Thus, when a permit applicant or

landowner appeals a decision of a Corps District, a Review Officer for the Division will

oversee the appeal. Id. § 331.3. The regulations do not require that the Corps provide

public notice of the appeal and do not provide for a formal hearing. Instead, the regulations

authorize an informal meeting or conference call for appeals of jurisdictional determinations

and an informal conference for appeals of permit decisions. Id. § 331.7.

Ultimately, the Division Engineer has limited authority to overturn the District’s decisions.

The Division Engineer can only overturn the District Engineer’s factual findings if they are

not supported by substantial evidence on the administrative record prepared by the

District. Id. § 331.9. In addition, the Division Engineer can only overturn other portions of

the decision below if they are “arbitrary, capricious, an abuse of discretion, ..., or plainly

contrary to a requirement of law, regulation, an Executive Order, or officially promulgated

Corps policy guidance.” Id. § 331.9(b). The Division Engineer must issue a final decision in

writing, id., and should normally make the decision within 90 days after the permit applicant

or landowner begins the appeal process. Id. § 331.8.

The Corps’ regulations provide that decisions on appeals are “only applicable to the instant

appeal and [have] no other precedential effect.” Id. § 331.7(g). Nevertheless, each of the

Divisions that is involved in Section 404 permitting makes those decisions available on a

website for the Division. The following table provides links for the Divisions.

Great Lakes and Ohio River

Mississippi Valley

North Atlantic

Northwestern

Pacific Ocean

South Atlantic

South Pacific

Southwestern