Ninth Circuit: Court Has No Jurisdiction to Review Corps' Clean Water Act Jurisdictional Determination

Is a determination by the Corps of Engineers that property contains "waters of the United States" and is therefore subject to regulation under the Clean Water Act a "final agency action" subject to judicial review under the Administrative Procedures Act?  According to the Ninth Circuit, no. 

In Fairbanks North Star Borough v. U.S. Army Corps of Engineers, No. 07-35545 (Sep. 12, 2008), Fairbanks wanted to develop a parcel for a playground, athletic fields, and associated infrastructure, and asked the Corps for a determination whether any of the property was "wetlands."  The Corps replied that the entire parcel was wetlands and was subject to regulation under the Clean Water Act.  In other words, before Fairbanks could place any fill material on the property, it must obtain a section 404 permit from the Corps. Fairbanks exhausted its administrative remedies, then challenged the determination in court asserting the wetlands determination was erroneous.

The district court granted judgment on the pleadings to the Corps, holding that the jurisdictional determination was not "final agency action" under the APA and the court therefore had no jurisdiction. 

The Ninth Circuit agreed.  The court held the Corps' jurisdictional determination was not "tentative" or "interlocutory" and satisfied the first part of the two-part test for whether an agency action is judicially reviewable.  Slip op. at 12745 - 12748.  However, the court held that the Corps' action did not satisfy the second part of the test because it did not "impose an obligation, deny a right, or fix some legal relationship."  Slip op. at 12744 - 12745 (quoting Ukiah Valley Med. Ctr. v. FTC, 911 F.2d 261, 264 (9th Cir. 1990)). The court held "Fairbanks' rights and obligations remain unchanged by the approved jurisdictional determination.  It does not itself command Fairbanks to do or forbear from anything; as a bare statement of the agency's opinion, it can be neither the subject of 'immediate compliance' nor of defiance."  Slip op. at 12748 - 12749 (quoting FTC v. Standard Oil Co., 449 U.S. 232, 239-40 (1980)). The court held that the Corps' determination that the property is subject to CWA regulation doesn't affect any rights or obligations, since the CWA (and not the determination the law applies to the property) affects the landowner's rights or obligations:

At bottom, Fairbanks has an obligation to comply with the CWA. If its property contains waters of the United States, then the CWA requires Fairbanks to obtain a Section 404 discharge permit; if its property does not contain those waters, then the CWA does not require Fairbanks to acquire that permit. In either case, Fairbanks’ legal obligations arise directly and solely from the CWA, and not from the Corps’ issuance of an approved jurisdictional determination.

Slip op. at 12749.  The court held that the courts do have the "final say on the scope of the CWA," id. at 12759, and that Fairbanks was free to contest the existence of CWA jurisdiction.  The court agreed that if Fairbanks were to stick to its guns and proceed to develop its property without a 404 permit, "now that Fairbanks is on the Corps' radar screen," it is at least plausible that Fairbanks would be subject to an enforcement action.  "Whatever Fairbanks now chooses to do, it will be no more or less in violation of the CWA than if it had never requested an approved jurisdictional determination."  Slip op. at 12753.  

In other words, property owners, the Ninth Circuit is telling you to "take your chances."

As a final matter, the court blew off Fairbanks' argument that because a Corps' determination that property is not subject to CWA jurisdiction is "final agency action" and is judicially reviewable, then the opposite determination should also be considered final.  I guess injury to a third-party plaintiff's concern about alleged wetlands are more concrete to the court than the injury to property owners forced to submit to a regulatory regime, even if it entails thousands of dollars spent to comply with regulations that may not even apply.