Review of Adverse Decisions

• Author: Margaret 'Peggy' Strand/Lowell Rothschild
• Pages: 135-150

Page 135

Chapter 5

Review of Adverse Decisions

Persons dissatised with a wetlands decision by the Corps or EPA can seek review. Depending upon

the person and the action, administrative or judicial review is available. In addition, persons cla im-

ing that federal wetland decisions deprived them of an interest in property may seek monetary

compensation. is chapter addresses the administrative appeals, judicial review, and the judicial “tak-

ings” remedy. e CWA does not specically provide for judicial review of wetlands decisions. Rather,

such review is available pursuant to the standards of the APA,1 and is based on general federal question

jurisdiction.2 Administrative enforcement penalties under CWA §309 are the only wetlands-related actions

for which the Act expressly provides review.3 Section 509(b) establishes federal court of appeals review for

many CWA administrative actions taken by EPA, but does not apply to actions under §404. Section 505(a)

(2) authorizes lawsuits against EPA to compel performance of mandatory duties.

Review of the Corps’ decisions has changedsince the 2000 Corps issuance of an administrative

appeals rule for na l permit denials and wetlands jurisdictional determinations.4 e administrative

appeal is available to the permit applicant or landowner only. ese persons will have to properly exhaust

all applicable administrative remedie s under the administrative appeals process before ling an action

in the federal courts. Direct judicial review is ava ilable to other parties dissatised with a Corps or EPA

wetland decision.

e 2012 Supreme Court decision in Sackett v. U.S. EPA5 authorized judicial review of a wetlands com-

pliance order, changing the previously applicable law that had denied pre-enforcement review of compli-

ance orders. See Chapter 6, Enforcement, for a more extensive description of this decision. ere has been a

healthy debate over whether Sackett has opened the door to judicial review for other administrative actions

that have, to date, been held non-reviewable. Practitioners will want to follow the post-Sackett cases with

care, since this decision is applied by lower courts.

I. Review of Permits and Regulatory Decisions

A. Administrative Appeal Process

e Corps issued its rules establishing an administrative appeal process on March 28, 2000,6 allowing

applicants and landowners to appeal denied permits, issued permits that contain requirements that are

unacceptable to the applicant, or nal wetland jurisdictional determinations. e decisions that are subject

to appeal are made initially by Corps District oces. e decisions are appealed to the Corps Division

oces. Requests for appeal must be furnished to the Division oce within 60 days of the date of the

appealable decision.

1. 5 U.S.C. §706 (2006), available in ELR S. A. P.

2. 28 U.S.C. §1331 (2006).

3. 33 U.S.C. §1319(g)(8) (2006), ELR S. FWPCA §309(g)(8).

4. 33 C.F.R. pt. 331 (2008).

5. 132 S. Ct. 1367 (2012).

6. 65 Fed. Reg. 16486 (Mar. 28, 2000), codied in 33 C.P.R. pt. 331.

Page 136 Wetlands Deskbook, 4th Edition

e appeal ocer is generally an attorney in the Corps Division; these appeals do not involve admin-

istrative law judges. e procedures are informal, and the appeal is decided on the information that was

before the district; there is no opportunity to introduce witnesses or present evidence that was not in the

District’s records. A site visit or an appeal conference or meeting may be conducted during the appeal pro-

cess. A decision on the merits of the appeal based on the administrative record is normally made in 90 days.

e Division will either uphold the District decision or send the case back to the District, with direction,

instructing the District to make a new decision.

• Who Can Appeal. e appeals are available only to the permit applicant; landowner; and to a lease,

easement, or option holder who has received an approved jurisdictional determination, permit denial

or has declined a proered individual permit. us, if someone other than one of the aected parties

listed above wants to challenge a Corps’ regulatory decision, federal court is the only option.7

• What Actions Can Be Appealed. Appeals are available for nal wetland jurisdictional determinations,

permit denials made by the Corps, and declined individual permits. An applicant or landowner

cannot appeal a permit denied by the corps “without prejudice.” A permit denial without prejudice

includes a permit that was denied because of a state §401 water quality certication or state coastal

zone management disapproval.8 No EPA or Corps administrative enforcement actions are subject to

this administrative appeal process.

• Exhaustionof Administrative Remedies. e regulations specif y that pursuit of an ad ministra-

tive appeal is a prerequisite for judicial re view. A party c annot seek redress in the federal cour ts

unless it ha s received a na l Corps decision on the merits and exhausted all applicable adminis-

trative remedies.

e Corps’ eight division oces (Great Lakes and Ohio River, Mississippi Valley, North Atlantic,

Northwestern, Pacic Ocean, South Atlantic, South Pacic, and Southwestern) post the appeals and appel-

late decisions on their websites.9 ere have been many appeals of jurisdictional determinations.

B. Judicial Appeal Process

An applicant or landowner may seek judicial review in federal court of a denied permit or declined indi-

vidual permit only after exhausting all available administrative remedies. However, if someone other than

the applicant or property owner wants to challenge a Corps’ regulatory decision, that person can go directly

to court. Other Corps and EPA nal decisions, such as regulations, are reviewable a lso in federal district

courts. Judicial review of a Corps decision is governed by the APA.10 Federal courts must uphold the deci-

sion unless it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.11

us, a Corps permit decision may be overturned only if it is arbitrary and capricious.12 e standard for

review is deferential.13

As a general matter, the Corps’ permit decisions are reviewed on the administrative record, and not with

a de novo trial in federal court.14 Review on the record means that a court will not hear testimony, but will

only review the administrative record developed while the Corps was evaluating the permit application.

7. e Corps considered, but rejected, making administrative appeals available to interested third parties. See id. at 16488.

8. See33 C.F.R. 331.5(b)(4) and 33 C.F.R. 320.40).

9. See http://www.lrd.usace.annymil/ET-CO/Regulatory/Appeals/ division%20links.asp (providing link to each division’s appellate decisions

web page).

10. See5 U.S.C. §§701–706 (2006).

11. See5 U.S.C. §706(2)(A).

12. See Galveston Bay Conservation & Preservation Ass’n v. U.S. Army Corps of Engineers, 55 F. Supp. 2d 658 (S.D. Tex. 1999); Johnson v. U.S.

Army Corps of Engineers, 6 F. Supp. 2d 1 105 (D. Minn. 1998); Morgan v. Walter, 728 F. Supp. 1483, 20 ELR 20731 (D. Idaho 1989);

Missouri Coalition for theEnvironment v. U.S. Army Corps of Engineers, 678 F. Supp. 790, 19 ELR 20581 (E.D. Mo. 1988); 1902 Atlantic,

Ltd. v. Hudson, 574 F. Supp. 1381, 14 ELR 20023 (E.D. Va. 1983); Sierra Club v. U.S. Army Corps of Engineers, 701 F.2d 1011, 13 ELR

20326 (2d Cir. 1983).

13. See Galveston Bay Conservation & Preservation Ass’n, 55 F. Supp. 2d at 661; Stewart v. Potts, 996 F. Supp. 668, 674 (S.D. Tex. 1998).

14. See Smith v. U.S. Environmental Protection Agency, 1999 U.S. Dist. LEXIS 5151 (S.D. Ala. 1999); Mylith Park Lot Owners Ass’n v. U.S.

EPA, 1997 U.S. Dist. LEXIS 18725 (N.D. Ill. 1997); Bailey v. United States, 647 F. Supp. 44, 17 ELR 20501 (D. Idaho 1986); Avoyelles

Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 904–05, 1 3 ELR 20942 (5th Cir. 1983).