On December 11, 2015, the U.S. Supreme Court agreed to review
whether a Clean Water Act (CWA) jurisdictional determination issued
by the U.S. Army Corps of Engineers (Corps) constitutes final
agency action subject to judicial review.
Previously, three federal appeals courts could not agree on
whether the nonbinding, jurisdictional determination was final
agency action that could be challenged in federal court under the
Administrative Procedures Act (APA). While the CWA does not
require the Corps to issue jurisdictional determinations, the
approval of one indicates that the Corps will require the landowner
to obtain a Section 404 Dredge and Fill Permit for activities that
may affect the wetland. Without the ability to challenge the
Corps determinations, property owners whose acreage is designated
as wetlands must either abandon the proposed use of the property,
or initiate the expensive and time-consuming process of obtaining a
404 permit.
