Administrative Appeals, Judicial Review and Enforcement

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

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