Jump to Navigation
Jump to Content

Belle Co. v. United States Army Corps of Engineers

ELR Citation: 44 ELR 20175
Nos. 13-30262, (5th Cir., 07/30/2014)

The Fifth Circuit upheld a lower court's dismissal of a lawsuit challenging the U.S. Army Corps of Engineers' jurisdictional determination (JD) that a proposed landfill site contains wetlands subject to regulation under the CWA. The lower court ruled that the JD is not a “final agency action” and therefore not reviewable under the APA. On appeal, the property owner argued that the U.S. Supreme Court's decision in Sackett v. EPA, 132 S. Ct. 1367, 42 ELR 20064 (2012), compels the conclusion that the JD is reviewable final agency action. But the JD is not an action by which rights or obligations have been determined, or from which legal consequences will flow. Unlike the compliance order at issue in Sackett, which independently imposed legal obligations on the property owners, the JD does not oblige the owner to do or refrain from doing anything to its property. The JD merely serves as a notification of the property’s classification as wetlands. In addition, the compliance order in Sackett determined that the property contained wetlands and that the owners had discharged material into those wetlands in violation of the CWA. By contrast, the JD here does not state that the owner is in violation of the CWA, much less issue an order requiring the owner to comply with any terms in the JD or take any steps to alter the property. Accordingly, the JD is not a "final agency action" subject to judicial review.