Judicial reviewability of approved jurisdictional determination’s (AJD) under the Clean Water Act (CWA) is being sought by a Minnesota peat farmer and briefs in support of the move have been filed with the Supreme Court by trade organizations, industry groups, as well as state and local governments.
Jurisdictional determinations regarding whether land contains wetlands are made under the CWA by the US Army Corps of Engineers (Army Corps). A Minnesota peat farmer has filed a case that contends that such an AJD should be considered a “binding” final agency action and thus subject to judicial review.
The implications of judicial review for AJDs are widespread. “The government argues AJDs are not judicially reviewable because they do not direct recipients to take any particular action, But AJDs establish sharp lines that have direct, powerful, and coercive effects on how their recipients proceed,” a brief filed by lawyers on behalf of the Foundation for Freedom and Economic Progress and Utility Water Act Group noted.
Government briefs argue Army Corps decisions are not judicially reviewable, because while they mark the consummation of the agency’s decision process, no “rights or obligations have been determined” and no “legal consequences will flow” from the determination.
State, county and city governments filing briefs in support of granting judicial review for AJDs said that such reviewability is needed to ensure certainty in planning decisions and that unilateral changes regarding jurisdictional authority impede decision making processes. The states specifically cite federalism concerns noting that “the Corps’ position would raise serious federalism concerns in light of the States’ traditional role in land and water use management.”
The matter is before the Supreme Court after differing rulings were handed down by multiple U.S. circuit courts. The Eighth Circuit in St. Louis found in favor of the plaintiff, while the Fifth Circuit in New Orleans and Ninth Circuit in San Francisco found in favor of the government. Oral arguments on the case are scheduled for March 30.