Wetland Determinations Cannot Be Challenged In Court

The Fifth Circuit Court of Appeals has held that a court may not review a determination by the U. S. Army Corps of Engineers ("Corps") that a particular body of water is subject to jurisdiction under the Clean Water Act because that determination is not a final agency action. Belle Company, LLC v. USACE, Case 13-30262 (5th Cir. July 30, 20140).

Section 404 of the Clean Water Act prohibits the discharge of dredged or fill materials into waters of the United States unless done in accordance with a permit issued by the Corps. Whether a planned project involves waters of the United States is a threshold question regarding whether a 404 permit will be required. Applicable regulations allow the Corps to issue a determination (a jurisdictional determination or "JD") about whether water body is subject to Clean Water Act jurisdiction.