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Fairbanks N. Star Borough v. Corps of Eng'rs

ELR Citation: 38 ELR 20239
Nos. No. 07-35545, (9th Cir., 09/12/2008)

The Ninth Circuit upheld a lower court decision that it lacks jurisdiction to review the U.S. Army Corps of Engineers' (the Corps') jurisdictional determination classifying certain lands in Alaska as wetlands subject to regulation under the Clean Water Act (CWA). The case arose after a borough in Alaska sought to develop a 2.1-acre tract of property for its residents' recreational use. The borough filed suit to set aside the Corps' approved jurisdictional determination, but it is not final agency action within the meaning of the Administrative Procedure Act. Although it constitutes the consummation of the Corps' decisionmaking process, the wetlands classification did not impose an obligation, deny a right, or fix any legal relationship. The borough has not applied for a CWA §404 permit. Nor has the Corps initiated any preenforcement or enforcement action. The finding simply puts the borough on notice that the Corps believes a permit is necessary if the borough decides to proceed with its project.