Jul 302014

In a decision issued today, the Fifth Circuit Court of Appeals determined that a jurisdictional determination by the Army Corps of Engineers was not a final agency action and was thus not judicially reviewable (Belle Company v. U.S. Army Corps of Engineers, 13-30262).

The court affirmed a district court judge's decision that said the court did not have subject-matter jurisdiction.

The Fifth Circuit said the case is distinguishable from the facts before the Supreme Court in Sackett, which involved an EPA compliance order. (Story)

"[W]hereas the compliance order in Sackett severely limited the Sacketts’ ability to obtain a 404 permit from the Corps, see Sackett, 132 S. Ct. at 1372, the JD operates oppositely, informing Belle of the necessity of a 404 permit to avoid enforcement action," the appeals court said.

In contrast to the compliance order, "the JD does not state that Belle is in violation of the CWA, much less issue an order to Belle to comply with any terms in the JD or take any steps to alter its property," the opinion said.

"Moreover, while the Corps, responsive to Belle’s own inquiry, has made a determination as to the presence of wetlands on Belle’s property, it renders no regulatory opinion as to Belle’s ultimate goal to build a landfill. Belle could still obtain a Corps permit to fill, without the presumption (attached to an EPA compliance order) against issuing a permit."