Review of Adverse Decisions

• Author: Margaret 'Peggy' Strand/Lowell Rothschild
• Pages: 105-116

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

Decisions

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.

331.

6. e Corps considered, but rejected, making administrative ap-

peals available to interested third parties. See id. at 16488.