Page 136 Wetlands Deskbook, 4th Edition
e appeal ocer 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 wa s
before the district; there is no opportunity to introduce w itnesses 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; la ndowner; and to a lease,
easement, or option holder who has received an approved jurisdictional determination, permit denial
or has declined a proered individual permit. us, if someone other than one of the aected 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 cert ication or state coa stal
zone management disapproval.8 No EPA or Corps administrative enforcement actions are subject to
this administrative appeal process.
• Exha ustion of Administra tive Remedies. e re gulations specif y that pursuit of an ad ministra-
tive a ppeal is a prerequisite for judici al re view. A par ty c annot seek redre ss in the federa l cour ts
unless it ha s received a na l Corps decision on the mer its and exh austed all applicable ad minis -
trati ve remedies.
e Corps’ eight division oces (Great Lakes and Ohio River, Mississippi Valley, North Atlantic,
Northwestern, Pacic Ocean, South Atlantic, South Pacic, 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 ex hausting all ava ilable 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. Ot her 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 arbitrar y 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 t he Corps was evaluating the permit application.
7. e Corps considered, but rejected, making administrative appeals available to interested third parties. See id. at 16488.
9. See http://www.lrd.usace.annymil/ET-CO/Regulatory/Appeals/ division%20links.asp (providing link to each division’s appellate decisions
Galveston Bay Conservation &
Preservation Ass’n v
. U.S. Army Corps
of Engineers, 55 F. Supp. 2d 658
ex. 1999); J
ohnson v. U.S.
Missouri Coalition for the
nvironment v. U.S.
Army Corps of Engineers, 678 F. Supp. 790
ELR 20581 (E.D. Mo
. 1988); 1902 Atlantic,
20326 (2d Cir. 1983).
Galveston Bay Conservation & Preservation Ass’n, 55 F
. Supp. 2d at 661; Stewart v
. Potts, 996 F. Supp. 668
, 674 (S.D. T
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
s League, Inc. v. Marsh, 715 F.2d 897
, 904–05, 1 3 ELR 20942 (5th Cir. 1983).