Flexing the CWA’s Strong-Arm: Creating a Flexible Finality Standard for the Clean Water Act Jurisdictional Determinations

Nicholas D. Nunn*

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Table of Contents

I…….. INTRODUCTION
II……. STATUTORY BACKGROUND
a… Finality Under the Administrative Procedure Act
b… Jurisdictional Determinations Under the Clean Water Act
III….. PRECEDENT AND THE CURRENT CIRCUIT SPLIT: SACKETT, HAWKES, AND BELLE
IV….. TRADITIONAL ANALYSIS AND SCHIFF’S ALTERNATIVE PROPOSAL REJECTED
a… Finality Analysis of Jurisdictional Determinations Under Section 704
b… Agency Overreach Supports Adoption of Alternative Approach
c… Schiff’s Finality Analysis for Jurisdictional Determinations
d… Policy Problems Resulting From Schiff’s Analysis
V……. PROPOSED SOLUTION UNDER THE ADEQUATE REMEDY CLAUSE
a… Exposition of Proposed Solution
b… Possible Concerns with the Adequate Remedy Standard
VI….. CONCLUSION

I.  INTRODUCTION

The Clean Water Act (CWA),[1] must balance the public’s interest in wetland ecosystems and hygienic water sources against an individual’s rights in her own property.  At-risk waterfowl depend on wetlands for their continued existence.  The necessity of potable water is indisputable. Yet the effects of the CWA on a property owner can be devastating.

After years of planning, a family could find out that it may never be able to build its dream home on private land because the Army Corps of Engineers (Corps) has determined that the land falls under the jurisdiction of the CWA.  Once that jurisdictional determination (JD) is made, a property owner is faced with the difficult prospect of deciding between abandoning her cherished plans, going forward despite the regulation’s prohibition, or challenging the Corps’ determination.  If the party decides to appeal the decision within the agency, she may find after exhausting her appeals at the agency level that she is not entitled to immediate judicial review of the Corps’ JD.

There is currently a circuit split concerning whether an approved JD issued by the Corps under the CWA is a final agency action under the Administrative Procedure Act (APA).[2]  The Eighth Circuit has held that a JD is a final agency action, entitling the property owner to judicial review,[3] while the Fifth and Ninth Circuits have held that a JD is not a final agency action under the APA.[4]

The Supreme Court held in Sackett v. Environmental Protection Agency that compliance orders issued by the Environmental Protection Agency (EPA) under the CWA are final agency actions entitled to judicial review.[5]  The Eighth Circuit held that Sackett controls the issue of the finality of JDs because JDs issued by the Corps under the CWA are sufficiently similar to compliance orders issued by the EPA.[6]  The appellate court’s decision in Hawkes expresses concern that, without immediate judicial review of JDs, the Corps will be able to “strong-arm[ ]” parties into complying with agency determinations.[7]

The Fifth Circuit, on the other hand, held that Sackett does not settle whether JDs are final.[8]  Applying the test for finality established in Bennett v. Spear, the Court concluded that JDs are not final agency actions, since the issuance of a JD does not create any legal obligations or consequences.[9]

While the Fifth Circuit’s reasoning is ultimately more persuasive, an absolute prohibition of judicial review of JDs issued under the CWA would allow agencies to manipulate their jurisdiction under the CWA without the possibility of reproach from affected parties as the Eighth Circuit feared.  This concern led attorneys Damien Schiff and Luke Wake to argue that the traditional finality analysis should not apply to JDs issued by the Corps.[10]  They argue that judicial review should be allowed any time an agency has expressed even a “tentative” view of CWA jurisdiction and that there should be no deference to agency expertise regarding jurisdictional determinations.[11]

Schiff and Wake’s response to the issue of JD finality would result in an appeal of a JD every time a property owner does not want to be subject to the CWA.  It would also require every federal judge in the country to become an expert on the CWA, wetlands, and waterways, as the decision of whether a property falls under the jurisdiction of the CWA would ultimately fall upon their shoulders.

A better solution exists under the APA as it stands.  Section 704 of the APA states that agency actions are reviewable if they meet the finality requirements and “no other adequate remedy exists.”[12]  Under the standard proposed by this Note, courts would initially presume that JDs are not final agency actions based on an alternative remedy: filing for a permit under section 404 of the CWA and, if the permit application is denied, appealing both the denied permit and the jurisdictional determination.  However, if a party can show that a permit application would be futile based upon the administrative record, the court should hold that there is no alternative remedy and allow judicial review of the JD.

This analysis would allow review of JDs where a permit application would definitely be a futile action, while requiring parties to follow through with the permit process when there is the possibility that their application would be successful.  This solution best balances the concerns of both the agency in desiring an efficient procedure for evaluating the jurisdiction of the CWA and the parties, who should not be burdened with additional, futile requirements in order to protest an agency action.

II.  STATUTORY BACKGROUND

a.  Finality Under the Administrative Procedure Act

The APA sets forth finality as a condition for judicial review.[13]  Section 704 states that “final agency action for which there is no other adequate remedy in a court [is] subject to judicial review.”[14]  Furthermore, the section explains that “preliminary, procedural, or intermediate” agency actions or rulings are only subject to review following a final agency action.[15]

In Sackett, Hawkes, and Belle,[16] the courts relied predominantly on the two-part finality test set forth by the Supreme Court in Bennett v. Spear.[17]  The Court in Bennett addressed the issue of whether a party has standing to seek judicial review of a Biological Opinion issued by the Fish and Wildlife Service under the Endangered Species Act of 1973.[18]  The Court held that the Biological Opinion was a final agency action under section 704 based on a two-part test: first, the action must be the “consummation” of the agency’s decisionmaking process,[19] and, second, the action must determine “rights or obligations” or create “legal consequences” which flow from the decision.[20]  In Bennett, the Court held that the Biological Opinion satisfied the second prong because it “alter[ed] the legal regime” by determining whether the agency could take the endangered species at issue.[21]

b.  Jurisdictional Determinations Under the Clean Water Act

The CWA generally prohibits the discharge of pollutants into the waters of the United States.[22]  Under section 404 of the CWA, the Corps has the authority to issue permits allowing parties to discharge “dredged or fill material” into navigable waters under the jurisdiction of the CWA.[23]  These permits are known as “404 permits.”[24]  The Corps also has authority to “issue formal determinations concerning the applicability of the Clean Water Act” to individual properties.[25]  These “formal determinations” are the JDs at issue in Hawkes and Belle.[26]

A JD is defined as a “written Corps determination that a wetland and/or waterbody is subject to regulatory jurisdiction under section 404 of the Clean Water Act.”[27]  The agency classifies a JD as either preliminary or approved. Preliminary JDs indicate that there may be waters of the United States on a property.[28]  Preliminary JDs are only advisory and may not be appealed through the administrative appeals process.[29]  Approved JDs state that waters of the United States either are or are not on a given property and may be appealed through the administrative appeals process.[30]  Approved JDs are written determinations that include a factual “basis of jurisdictional determination.”[31]

JDs are issued by a district engineer, and, once approved, are sent to the affected parties along with the basis for the JD, a Notice of Appeal Process (NAP) form, and a Request for Appeal (RFA) form.[32]  To appeal the JD, an RFA must be received by a division engineer within sixty days of the NAP, and the RFA must indicate the reasons for appeal.[33]  Grounds for an appeal include procedural errors, incorrect applications of the law, and omissions of material facts; a “simple request for appeal because the affected party did not like the approved JD” is not a sufficient basis for an appeal.[34]

The district engineer has the opportunity to reconsider the JD based on the affected party’s request and any new information or data supplied by the party.[35]  Once the district engineer returns the JD to the affected party, the party may then file the RFA with the division engineer, who will inform the affected party within thirty days that the RFA is complete.[36]  If the RFA is complete, the review officer will determine whether a site investigation, appeal meeting, or both, is necessary and issue a decision within ninety days of receipt of the RFA.[37]  If the appeal is deemed to have merit, the JD will be remanded back to the district engineer, but, if the appeal is without merit, the district engineer’s decision is upheld;[38] in either case, the appeal process is complete.[39]  Finally, section 331.12 indicates that legal action may not be filed in federal courts for “permit denial[s] or . . . proffered permit[s]” until administrative remedies have been exhausted.[40]

III.  PRECEDENT AND THE CURRENT CIRCUIT SPLIT: SACKETT, HAWKES, AND BELLE

In Sackett v. Environmental Protection Agency, the Supreme Court held that a compliance order issued by the EPA under the CWA was a final agency action, for which judicial review is available.[41]  The affected party in Sackett received a compliance order from the EPA after using fill material on his residential lot, which contained wetlands.[42]  Because of the presence of wetlands, the use of the fill material was a violation of section 301 of the CWA.  The EPA’s order required the party to give the agency access to the site and restore the site to its previous condition.[43]

The Court used the two-part Bennett test to determine whether the compliance order was a final agency act.[44]  The order met the consummation prong of the test, since the only remaining available agency review was “informal discussion” regarding the requirements of the order.[45]  The Court also found that requiring the party to restore their land to its previous condition was a legal consequence.  Additionally, the order limited the party’s ability to obtain a 404 permit in the future.[46]  The Court determined that the party’s ability to file for a 404 permit and then appeal a denial of that permit application was not an “adequate remedy” under section 704.[47]

The Court based its decision on the need to balance agency efficiency with the APA’s presumption in favor of judicial review.[48]  The Court stated that “there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties,” which would occur if judicial review of the compliance order was not available.[49]

In Hawkes, the Eighth Circuit held that an approved JD under the CWA is a final agency action.[50]  The affected party obtained an approved JD from the Corps that stated that its property fell under CWA jurisdiction before taking the approved JD through the administrative appeals process, outlined in sections 331.1 through 331.12.[51]

The Eighth Circuit determined that the lower court had “misapplied” Sackett in holding that the approved JD was not a final agency action.[52]  The court stated that Sackett created a “flexible final agency standard” and that finality should be determined based on a “pragmatic analysis.”[53]  First, the court reasoned that, because a JD is a “discrete agency action[ ],” it provides an opportunity for judicial review that would not disrupt the adjudicatory process.[54]

Like the Court in Sackett, the Eighth Circuit used the Bennett standard to determine whether the approved JD was a final agency action.[55]  The appellate court held that approved JDs meet the legal consequences prong of the Bennett finality analysis, because JDs prohibit the landowner from taking actions that would be legal if the property were not subject to the CWA.[56] The court also stated that the “coercive effect” of the JD on the party is very strong because of the specific nature of the finding.[57]  Furthermore, agencies would be led to overreaching and self-aggrandizing decisions if the JD is not immediately reviewable.[58]

Finally, the court held that the affected party’s ability to file a 404 permit application and, if denied, appeal both the denial and the JD is not an adequate remedy under section 704.[59]  The court stated that this alternative is not adequate because of the cost of the permitting process and because communications between the Corps and the affected party “made it clear” that a permit application would be futile in this case.[60]

In Belle, the Fifth Circuit held that a JD under the CWA is not a final agency action.[61]  In that case the Corps found that the affected party’s property fell under the CWA and issued an approved JD, which the party took through the administrative appeals process.[62]  The court used the Bennett test to determine whether the JD was a final agency action.[63]

The court held that the JD met the consummation prong of the Bennett test because the party had exhausted the administrative appeal process.[64]  However, the court held that the legal obligations prong was not met.[65]  The court stated that the JD did not create any legal rights or obligations because the affected property was subject to the same requirements under the CWA whether or not the JD had been issued.[66]  Unlike the compliance order in Sackett, a JD does not require a party to act or prevent them from acting, in any way that would have been legal prior to the issuance of the JD.[67]  Also, a JD does not affect the likelihood of later obtaining a 404 permit, unlike compliance orders issued following a violation of the CWA.[68]  Furthermore, the court stated that immediate judicial review of JDs would “disrupt the regulatory review system” under section 331 of the CWA.[69]

The court suggested that, had the legal obligations test been met by the JD, then the party would have had an “adequate judicial remedy” in its ability to apply for a 404 permit.[70]  The court distinguished Sackett by stating that, in Sackett the affected party could not initiate a challenge under CWA enforcement actions.[71]

IV.  TRADITIONAL ANALYSIS AND SCHIFF’S ALTERNATIVE PROPOSAL REJECTED

This Section begins with the argument that the Fifth Circuit is correct and JDs do not meet the legal consequences requirement under the traditional section 704 finality analysis.  However, the concerns of agency overreach would likely be realized if JDs are never entitled to judicial review.[72]  This suggests that, even if finality does not apply, a modified form of the finality analysis would best support the policies of efficiency and fairness to the affected party.  Next, this Section will consider the solution proposed by Schiff and Wake; namely, that there should be no finality requirement for JDs and agency JDs should not be entitled to deference during judicial review.[73]  This proposal is problematic, as it would create problems of agency expertise, predictability, judicial efficiency, and political accountability.

a. Finality Analysis of Jurisdictional Determinations Under Section 704

In Hawkes and Belle, the courts compared JDs with the compliance orders, which were held to be final agency actions in Sackett.[74]  While both courts determined that JDs meet the consummation prong of the Bennett test for finality,[75] they ultimately disagreed on whether the legal consequences prong is met.[76]

The Eighth Circuit in Hawkes emphasized that JDs, like compliance orders, are discrete agency actions.[77]  However, the legal consequences standard under Bennett does not turn on whether an action is a separate, discrete action.[78]  The Eighth Circuit held that the legal consequences standard is met because JDs “prohibit[ ] a party from taking otherwise lawful action.”[79]  The result of the JD is that a party can no longer use mine peat on its property without a permit, so legal rights have been determined.[80]

This argument is undermined by the Fifth Circuit’s reasoning in Belle that a party, whose property falls under the jurisdiction of the CWA, is susceptible to the same permitting requirements and enforcement actions regardless of whether a JD has been issued.[81]  In fact, the Corps informed the affected party in Belle that its responsibility under the CWA would be the same even if the agency did not issue a JD.[82]

The Fifth Circuit’s reasoning indicates that a JD does not change the affected party’s rights or obligations.  Therefore, no legal consequences follow from the Corps’ issuance of a JD.  In Sackett, the compliance order required the affected party to undo the changes to its property, exposed it to double penalties during later enforcement proceedings, and limited its ability to obtain a section 404 permit.[83]  Because a JD creates no such results, JDs are dissimilar from the compliance orders held to be final in Sackett and, thereby, fail the legal consequences prong of the Bennett test.[84]  Therefore, JDs are not final agency actions under the standard APA analysis, and judicial review is not available to parties who desire to appeal the issuance of an unfavorable JD.

b.  Agency Overreach Supports Adoption of Alternative Approach

A bright-line rule that JDs are not final agency actions under the APA would result in the policy-based problems set forth by the Court in Sackett: agency overreach, inefficiency, and a disincentive to challenge the agency’s action.[85]

Because a JD could be considered a question of the court’s jurisdiction, allowing the Corps to determine the jurisdiction of the CWA without judicial oversight could lead to the agency expanding the limits of its jurisdictional reach in order to bring more types of property under agency control.[86]  Also, forcing affected parties to engage in section 404 permit applications to challenge the JD will require both the affected party and the agency to engage in a time-consuming, expensive, and possibly futile application process, when immediate judicial review of the JD would have satisfied the affected party’s objection to the agency’s action.[87]

Additionally, parties are unlikely to appeal JDs because they will face the burden of an additional agency process without the assurance of a likelihood of success.[88]  The concern that affected parties will not appeal JDs through the 404 permit application process will feed back into the concern of agency overreach.

Based on these concerns, a complete prohibition of judicial review of JDs, although mandated by the traditional finality analysis, would result in several undesirable outcomes.  Faced with this conflict, a modified form of the finality analysis would be a fitting solution to the issue of whether there should be judicial review of JDs. In the next Sections, Schiff and Wake’s proposed solution will be set forth, assessed, and rejected.  Then, an alternative solution will be proposed.

c.  Schiff’s Finality Analysis for Jurisdictional Determinations

Schiff and Wake (Schiff) argue that JDs should not be subject to the finality analysis under the APA.[89]  Schiff argues that regulatory burdens will prevent affected parties from being able to challenge JDs without the availability of immediate judicial review.[90]  Because the costs of the permit application and litigation are likely to outweigh any benefit that may result from the appeals process, parties are less likely to challenge agency decisions.[91]  Schiff argues that the disincentive to challenge agency actions will lead to agency overreach and unchecked, self-aggrandizing behavior.[92]  Schiff argues that several changes are necessary in order to assure that agency overreach does not adversely affect parties.[93]

Schiff asserts that JDs meet the standards for finality but argues that the requirement of finality should not apply to JDs.[94]  Schiff argues that, when an agency asserts “even a tentative view” of CWA jurisdiction, that view should be entitled to judicial review.[95]  Schiff also contends that the Corps should not be entitled to deference from the reviewing court.[96]  He argues that a JD is a statement of the agency’s own jurisdiction and Congress did not intend for the agency to be able to establish the scope of its own jurisdiction.[97]  Giving courts the power to decide jurisdictional issues without deferring to the agency will enable courts to check potential agency overreach.[98]

Schiff also argues that the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 (2012), should be amended to grant attorney fees as a matter of right when agency action regarding its own jurisdiction is overturned.[99]  He contends that damages should be available to the affected party when the reviewing court determines that there was no substantial justification for the agency’s position.[100]

Furthermore, Schiff argues that substantive reforms regarding property rights need to be made in order to assure that “environmental and land-use regimes” such as the CWA do not unconstitutionally impede the rights of property owners.[101]  Schiff asserts that, without changes to the APA, the EAJA, and the substantive law regarding property rights, property owners will not be able to defend their rights as is necessary in a “truly free society.”[102]

d.  Policy Problems Resulting From Schiff’s Analysis

Schiff’s solution creates several issues.  First, by suggesting that courts should not defer to Corps JD decisions, Schiff fails to acknowledge the important role of agency expertise in the field of regulation.  Second, Schiff’s solution will create problems of judicial efficiency; because there will be de novo review of all JDs, courts will experience a flood of JD reviews that are likely to have little merit.  Finally, by requiring the agency to pay attorney fees any time the agency is overturned, Schiff will effectively require agency infallibility in a system, whose predictability has been undermined by judicial review without deference.

Under Schiff’s solution there is no acknowledgement of expertise in an agency’s field of administration.  By taking on the role of reviewing substantive decisions without deferring to the agency decision, each court will be forced to become an expert in the administration of the CWA in order to appropriately evaluate JDs issued by the Corps.

Schiff’s argument that JDs are essentially questions of the Corps’ own mandate and, thus, are questions of juror-directed interpretation, fails to adequately assess the nature of JDs.  During the JD process, the Corps engages in a factfinding inquiry and makes a substantive decision based on those findings; the agency determines if the property meets the requirements of the CWA based on the underlying facts.[103]

Deference to agency expertise during judicial review is mandated by the APA in most contexts.[104]  The standard of review for substantive informal agency action is the arbitrary and capricious standard, which is a narrow and deferential standard for judicial review.[105]  The arbitrary and capricious standard recognizes that courts are not experts in the agency’s relevant field; substantive agency decisions can be overturned only when the agency has failed to engage in reasoned decisionmaking based on all of the relevant facts and issues involved in the case.[106]

Without deference to agencies on substantive questions, courts will be forced to make substantive decisions on their own based on the existing record.  While courts are typically well-suited to review agency actions for legal errors, questions of substantive fact are not under the standard purview of the courts.[107]  Under the arbitrary and capricious standard, courts generally remand the case to the agency if the agency’s action is found lacking.[108]  It is unlikely that a court will be able to make a better decision than the agency by failing to defer to agency expertise.

Judicial efficiency will also suffer if courts are not required to defer to the agency.  Affected parties, recognizing that courts will be able to make decisions without adherence to Corps determinations, would appeal every untoward JD decided by the Corps in the hopes that the court will decide the issue in their favor based on the court’s relative inexperience with the administration of the CWA.

Also, because courts will not be restrained by Corps decisions, each district court judge will be able to develop her own doctrine for deciding cases regarding JDs under the CWA until higher courts make precedents.  This will undermine the predictability of decisions and lead to increased confusion in the administration of the CWA.

Under Schiff’s proposal, the Corps will have to pay attorney fees to affected parties any time its decision is overturned by a reviewing court.[109] Because each court will be able to make substantive decisions without deference to the agency, the predictability of court decisions under the CWA will be decreased.  As a result, the Corps will be forced to make determinations based on each court’s idiosyncratic understanding of the CWA or else be forced to pay out substantial attorney fees on a regular basis.

In failing to acknowledge agency expertise, Schiff’s proposal creates more problems of predictability under the CWA than it solves; the proposal only shifts the ultimate decision to the reviewing courts, which, based on their position, are not as well-suited to deciding substantive questions under the CWA.

V.  PROPOSED SOLUTION UNDER THE ADEQUATE REMEDY CLAUSE

a.  Exposition of Proposed Solution

This Note proposes an alternative modified finality standard for JDs under the CWA, which creates a rebuttable presumption that JDs are not final agency actions and, therefore, are not entitled to judicial review.  The presumption would be rebutted by a finding that the permitting process does not offer an “adequate remedy” to the affected party.  This standard acknowledges agency expertise by retaining deference to the agency and prevents piecemeal appeals of agency action, but allows for judicial review in those cases where fairness to the party requires immediate review.

The standard finality test from Bennett would not apply under the proposed standard; instead, the courts and the corps would presume that the Bennett test is met by JDs.  Although the test for a final agency action will be met based on this presumption, section 704 also contains the requirement that there be “no other adequate remedy in a court.”[110]  This requirement would be the deciding issue for allowing judicial review under this standard.  The presumption is that this requirement will not be satisfied by the JD.  Affected parties, whose property falls under the jurisdiction of the CWA, have the ability to apply for a section 404 permit under the CWA and appeal a denial of the permit.[111]  To rebut this presumption, courts will perform an inquiry to determine whether the permitting process is “adequate” under section 704.  Courts would find that the permitting process is adequate unless there is a clear indication that the permitting process would be futile in a given case.  Requiring a clear indication of futility would create a strong presumption that the permitting process is adequate, and that immediate judicial review of the JD is not available.

The court would be able to review the existing record from the initial JD process, and the subsequent administrative appeal, to determine if the permitting process would be futile.  An agency would be able to create a clear indication during the JD administrative appeal process by placing such a finding in the record for the court to review.  The agency would make the decision to include a clear indication of the futility of the permitting process based on its factfinding during the initial JD process, the administrative appeal, and its communications with the affected party.  If the court finds that there is a clear indication that the permitting process would be futile, then it would allow an immediate appeal of the JD.  Otherwise, the court would deny the request for judicial review.

This proposed standard would respect agency expertise, both regarding the JD and the futility of the permitting process, while allowing the court to review the entire record for indicia of the adequacy of the permitting process. In cases where a permit under section 404 is likely to be successful, the possibility for piecemeal appeals—where the affected party would appeal the JD, have it upheld, and then apply for a section 404 permit, be denied, and file a second appeal—would be eliminated.  Either only the appeal of the JD would go forward if the permitting process would be futile or only the appeal of the permit denial would take place if judicial review of the JD is not available.  Finally, by creating a presumption against judicial review, the standard would prevent a flood of appeals in the federal courts based merely on dissatisfaction with the Corps’ determination.

b.  Possible Concerns with the Adequate Remedy Standard

This Section will discuss three concerns with the adequate remedy standard: (1) that this standard will enable the agency to prevent the judicial review of any JD by merely stating that the permitting process is not futile, (2) that a bright-line rule would be preferable, and relatedly, (3) that this standard is preferable to simply holding that JDs are final agency actions.

There is a concern that, the agency could effectively prevent any JD from being reviewed by simply stating in the record that the permitting process could be successful.  Even though the court will be able to review the entire record to determine if such a clear indication exists, it is unlikely that the court would be able to find sufficient evidence in the record for a JD that would decisively overcome the agency’s definitive statement.  Also, the standard would create a burden on the agency of making preliminary section 404 permit decisions based on the information collected during the JD process.

First of all, the court could require the agency to provide adequate reasons to support any conclusive statement regarding the likely success of the permitting process in order for the statement to be the basis of the court’s finding.  Requiring substantial evidence in the record would prevent agencies from making decisions on a purely self-interested basis.

Also, it would be in the agency’s best interests to accurately assess the futility of the permitting process in order to operate more efficiently.  By finding that the permitting process would be futile during the JD appeal process, the agency would avoid having to go through the motions of assessing and denying a section 404 permit application with no possibility of success only to get to the ultimate appeal of the contested JD.  On the other hand, by finding that the permitting process could be successful, the agency does not have to go through an appeal of the JD when a granted permit would allow the affected party to engage in the desired activity.  However the agency decides, a clear well-supported indication from the agency regarding the futility of the permitting process will ultimately save agency resources from being expended on avoidable appeals.

Second, there is also an argument that a bright-line rule holding that JDs are either final agency actions or not will provide more clarity and predictability, while reserving judicial and agency resources.  Because the proposed standard would require an inquiry into the futility of the permitting process before every request for judicial review, resources would be wasted.

However, as noted above, it would be in the best interest of the agency to provide a clear indication of the futility of the permitting process in order to reserve its own resources.  As long as the agency acts in its best interest and creates a clear indication in the record, relatively little judicial effort will need to be expended on each request for judicial review.

Finally, there is an argument that allowing judicial review of all JDs would be a simpler and more efficient solution than the rebuttable presumption created by the adequate remedy standard.  Simply allowing judicial review of JDs would acknowledge agency expertise through the arbitrary and capricious standard and would allow parties to challenge JDs.  It would also save the agency from being forced to issue a clear intent regarding a permit application that has never been made and save the courts from having to deal with a new, application-specific finality standard.

Although allowing review of all JDs as final agency action is a simple solution, it fails to acknowledge the administrative framework currently in place to give affected parties the opportunity to challenge a JD within the agency and to mollify the results of JD through a permit application.

First, the administrative appeals process available allows an affected party to introduce new, material facts and to challenge the procedural steps taken by the issuing official.[112]  The administrative appeals process serves as an initial check on the issuing official’s decision and will satisfy some parties.  Second, section 404 permits allow an affected party to perform activities on properties under the jurisdiction of the CWA that would otherwise be prohibited.[113]  A section 404 permit would satisfy other affected parties, who will be able to engage in the desired activity if a permit is granted.[114]

In addition to reinforcing the purpose of the existing administrative alternatives, the adequate remedy standard will provide another screen from judicial review of JDs, when those JDs show that a permit application may be successful.  The screen created by the proposed standard will prevent piecemeal appeals, which will conserve both judicial and administrative efficiency.

The advantages conferred by the proposed standard, as set forth in the proceeding paragraphs, outweigh the simplicity created by a bright-line rule allowing judicial review of all JDs.

VI.  CONCLUSION

The proposed adequate remedy standard provides an ideal balance among judicial and administrative efficiency, the acknowledgement of agency expertise through deferential review, the utilization of existing administrative options, and the interests of the affected parties.  Unlike a per se rule prohibiting judicial review, the adequate remedy standard allows judicial review in cases where a need for immediate appeal can be shown.  The standard also limits the availability of judicial review—thus maintaining judicial efficiency—in a way that allowing judicial review for all JDs could not.

Also, unlike the Schiff proposal, the adequate remedy standard acknowledges agency expertise through deferential review but allows courts to determine whether the agency decision has an adequate basis.  By balancing these considerations, the adequate remedy standard provides the best solution for the current circuit split regarding whether JDs under the CWA are final agency actions.

 


*Nicholas D. Nunn is a student at the University of Georgia School of Law. He would like to thank Professor Levin for his guidance in writing this article.

     [1]  U.S.C. §§ 1251–1387 (2012).

     [2]  5 U.S.C. §§ 551–559, 701–706 (2012).

     [3]  Hawkes Co. v. U.S. Army Corps of Eng’rs, 782 F.3d 994, 1002 (8th Cir. 2015), cert. granted, 136 S. Ct. 615 (Dec. 11, 2015) (No. 15-290).

     [4]  Belle Co. v. U.S. Army Corps of Eng’rs, 761 F.3d 383, 386 (5th Cir. 2014); Fairbanks N. Star Borough v. U.S. Army Corps of Eng’rs, 543 F.3d 586, 591 (9th Cir. 2008).

     [5]  Sackett v. EPA, 132 S. Ct. 1367, 1374 (2012).

     [6]  See Hawkes, 782 F.3d at 996 (reversing the lower court’s decision based on a misapplication of the holding in Sackett).

     [7]  Id. at 1002 (quoting Sackett, 132 S. Ct. at 1374).

     [8]  Belle, 761 F.3d at 394.

     [9]  Id. at 391 (stating that the party would have been subject to agency action even if the JD had never been issued).

   [10]  Damien M. Schiff & Luke A. Wake, Leveling the Playing Field in David v. Goliath: Remedies to Agency Overreach, 17 Tex. Rev. L. & Pol. 97, 115 (2012).

   [11]  Id. at 115, 117–18.

   [12]  5 U.S.C. § 704 (2012).

   [13]  Id.

   [14]  Id.

   [15]  See id. (indicating that such actions are not directly reviewable without a further, final agency action).

   [16]  Sackett v. EPA, 132 S. Ct. 1367, 1371 (2012); Belle Co. v. U.S. Army Corps of Eng’rs, 761 F.3d 383, 388 (5th Cir. 2014).

   [17]  520 U.S. 154–78 (1997).

   [18]  Id. at 157.

   [19]  Id. at 178 (quoting Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948)).

   [20]  Id. (quoting Port of Bos. Marine Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970)).

   [21]  Id.

   [22]  33 U.S.C. § 1311 (2012); see id. § 1362(7) (defining “navigable waters” under § 1311 as “the waters of the United States”).

   [23]  Id. § 1344.

   [24]  Belle Co. v. U.S. Army Corps of Eng’rs, 761 F.3d 383, 386 (2014).

   [25]  33 C.F.R. § 320.1(a)(6) (2015).

   [26]  See Belle, 761 F.3d at 386 (discussing the JD administrative appeals process immediately after discussing § 320.1(a)(6)).

   [27]  33 C.F.R. § 331.2 (2015).

   [28]  Id.

   [29]  Id.

   [30]  Id.

   [31]  Id.

   [32]  Id. § 331.4.

   [33]  Id. § 331.5.

   [34]  Id.

   [35]  Id. § 331.6(b)–(c).

   [36]  Id. § 331.7(b).

   [37]  Id. §§ 331.7(c)–(d), 331.8.

   [38]  Id. § 331.10(a)–(b).

   [39]  Id. § 331.9(c).

   [40]  Id. § 331.12.

   [41]  Sackett v. EPA, 132 S. Ct. 1367, 1374 (2012).

   [42]  Id. at 1370–71.

   [43]  Id. at 1371.

   [44]  Id.

   [45]  Id. at 1372.

   [46]  Id. at 1371–72.

   [47]  Id. at 1372.

   [48]  Id. at 1374.

   [49]  Id.

   [50]  Hawkes Co. v. U.S. Army Corps of Eng’rs, 782 F.3d 994, 1002 (8th Cir. 2015), cert. granted, 136 S. Ct. 615 (Dec. 11, 2015) (No. 15-290).

   [51]  Id. at 998.

   [52]  Id. at 996.

   [53]  Id. at 997, 1002.

   [54]  Id. at 999.

   [55]  Id.

   [56]  Id. at 1000.

   [57]  Id.

   [58]  Id. at 1001–02.

   [59]  Id. at 1001.

   [60]  Id.

   [61]  Belle Co. v. U.S. Army Corps of Eng’rs, 761 F.3d 383, 394 (2014).

   [62]  Id. at 387.

   [63]  Id. at 388.

   [64]  Id. at 389.

   [65]  Id. at 394.

   [66]  Id. at 391.

   [67]  Id.

   [68]  Id. at 393.

   [69]  Id. at 394.

   [70]  Id. at 394 n.4.

   [71]  Id.

   [72]  See Hawkes Co. v. U.S. Army Corps of Eng’rs, 782 F.3d 994, 1001–02 (8th Cir. 2015), cert. granted, 136 S. Ct. 615 (Dec. 11, 2015) (No. 15-290) (describing the effect of denying review).

   [73]  Schiff & Wake, supra note 10, at 115, 117–18.

   [74]  Belle, 761 F.3d at 389–95; Hawkes, 782 F.3d at 994, 999–1002.

   [75]  Belle, 761 F.3d at 390; Hawkes, 782 F.3d at 999.

   [76]  Belle, 761 F.3d at 394; Hawkes, 782 F.3d at 1002.

   [77]  Hawkes, 782 F.3d at 999.

   [78]  See Bennett v. Spear, 520 U.S. 154, 178 (1997) (describing the legal consequences prong).

   [79]  Hawkes, 782 F.3d at 1000.

   [80]  See id. at 1001 (describing the result of mining peat without a permit).

   [81]  Belle, 761 F.3d at 391.

   [82]  Id.

   [83]  Sackett v. EPA, 132 S. Ct. 1367, 1371–72 (2012).

   [84]  Id.

   [85]  Id. at 1372, 1374.

   [86]  Hawkes Co. v. U.S. Army Corps of Eng’rs, 782 F.3d 994, 1001–02 (8th Cir. 2015), cert. granted, 136 S. Ct. 615 (Dec. 11, 2015) (No. 15-290).

   [87]  Id. at 1001.

   [88]  Id. at 1002.

   [89]  Schiff & Wake, supra note 10, at 115.

   [90]  Id. at 98.

   [91]  Id. at 111.

   [92]  Id. at 99, 118.

   [93]  Id. at 112–13.

   [94]  Id. at 115.

   [95]  Id.

   [96]  Id. at 116.

   [97]  Id. at 116–17.

   [98]  Id. at 118.

   [99]  Id. at 119.

  [100]  Id. at 120.

  [101]  Id. at 123.

  [102]  Id.

  [103]  See 33 C.F.R. § 331.2 (2015) (setting forth the factual findings that can serve as the basis for a jurisdictional determination).

  [104]  See 5 U.S.C. § 706 (2012) (setting forth the scope of judicial review under the APA).

  [105]  Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 414 (1971).

  [106]  Motor Vehicle Man. Ass’n v. State Farm Mutual Auto. Ins., 463 U.S. 29, 52 (1983).

  [107]  Overton Park, 401 U.S. at 416.

  [108]  SEC v. Chenery Corp., 318 U.S. 80, 95 (1943).

  [109]  Schiff & Wake, supra note 10, at 119.

  [110]  5 U.S.C. § 704 (2012).

  [111]  Belle Co. v. U.S. Army Corps of Eng’rs, 761 F.3d 383, 394 n.4 (5th Cir. 2014).

  [112]  33 C.F.R. § 331, App. C (2015).

  [113]  See 33 U.S.C. § 1344 (2012) (allowing discharge of full materials into navigable waters with a permit).

  [114] It would also be possible for those affected parties, whose cases may merit a successful permit application, to argue in the alternative that the JD is invalid during review if the permit is denied.

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