Review of Adverse Decisions

AuthorMargaret 'Peggy' Strand/Lowell Rothschild
Page 105
Chapter 5
Review of Adverse Decisions
Persons dissatised with a wetlands decision by
the Corps or EPA can seek review. Depend-
ing upon the person and the action, admin-
istrative or judicial review is available. In addition,
persons claiming that federa l wetland decisions
deprived them of an interest in property may seek
monetary compensation. is chapter addresses
the administrative appeals, judicial review, and the
judicial “takings” remedy.
e CWA does not specically provide for judi-
cial review of wetla nds decisions. R ather, such
review is available pursua nt to the standards of the
Administrative Procedure Act (A PA),1 and is based
on general federal question jurisdiction.2 Admin-
istrative enforcement penalties under CWA §309
are the only wetlands-related actions for which
the Act expressly provides rev iew.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 a gainst EPA to com-
pel performance of mandatory duties.
Review of the Corps’ decisions has changed
since the 2000 Corps issuance of an administrative
appeals rule for nal permit denials a nd wetla nds
jurisdictional determinations.4 e administra-
tive appeal is available to the permit applicant or
landowner only. ese persons will have to prop-
erly exhaust all applicable administrative remedies
under the administrative appeals process before l-
ing an action in the federal courts. Direct judicial
review is available to other parties dissatised with
a Corps or EPA wetland 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).
I. Review of Permits and Regulatory
A. Administrative Appeal Process
e Corps issued its rules establishing an admin-
istrative appeal process on March 28, 2000,5 allow-
ing applicants and landowners to appeal denied
permits, issued permits that contain requirements
that are unacceptable to the applicant, or nal wet-
land 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. A site
visit or an appea l conference or meeting may be
conducted during the appeal process. A decision
on the merits of the appeal based on t he admin-
istrative 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,
to make a new decision.
• Who Can Appeal . e appea ls are available
only to the permit applicant; landowner; and
to a lease, easement, or option holder who has
received a n approved jurisdictional determi-
nation, permit denia l or ha s declined a prof-
fered individual permit. us, if someone
other t han one of the aected parties listed
above wants to challenge a Corps’ regu latory
decision, federal court is the only option.6
5. 65 Fed. Reg. 16486 (Mar. 28, 2000), codied at 33 C.F.R. pt.
6. e Corps considered, but rejected, making administrative ap-
peals available to interested third parties. See id. at 16488.

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