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Ask the Lawyer: About Wetlands Determinations
Q. The U.S. Army Corps of Engineers visited my project site and said that part of my land is a “jurisdictional wetland.” This determination could cost me two or three lots in my 10-lot subdivision. My wetlands consultant disagrees with the determination. He doesn't think the land is either a wetland or within the Corps’s jurisdiction. Can I file a lawsuit and ask a court to tell the Corps that it is wrong?
A. Not yet. At this time, the Corps has simply indicated that it believes that part of your property is a wetland over which it has authority. You must overcome many hurdles before a court will hear the merits of a lawsuit.
Two of these hurdles are "final action" and "ripeness." When suing an agency like the Corps, you must have a “ripe” case ― a case in that there is a real controversy which is sufficiently developed for a court to make a decision ― and the agency must take “final agency action” before you can bring the case to a court.
Steps That Must Be Taken Before Going to Court
Unfortunately, there are a number of steps you must take before the Corps will be considered to have taken a “final agency action” and you have a “ripe” lawsuit:
- Obtain an Approved “Jurisdictional Determination” (JD) From the Corps.
A JD is a written Corps determination that a wetland or body of water is or is not subject to the Corps’s regulatory jurisdiction under the Clean Water Act.
You can hire a consultant to conduct the JD on your site and then seek Corps approval of it, or you can request that the Corps conduct the JD. It will take much longer if you have the Corps conduct it.
If you decide to hire a consultant, choose one who is well respected by your local Corps office.
- Appeal the Approved JD.
Assuming that you disagree with the approved JD, you can request an appeal through the Corps’ “administrative appeals process.” Though this process, the Corps’ division engineer will review your JD and make a final decision.
If you are still not satisfied with the division engineer’s decision and the administrative appeal, there are still several steps that need to be taken before you can appeal it in court.
- Apply for and Obtain a Permit.
The courts do not review cases unless they are “ripe” and do not consider challenges to JDs to be “ripe.” To be able to challenge the JD in court, you now must apply for a permit based on the JD, even though you dispute it.
Obtaining a wetland fill permit is a large undertaking. Once you have reached this point, you must decide whether you can make the project profitable without interfering with the wetland and whether, if you can obtain a fill permit, you will still want to file a lawsuit based on the JD.
- Decline and Appeal the Permit.
Once you have obtained a permit to fill all or part of the wetland, you can accept the permit or decline it.
If you want to bring a lawsuit, you need to go through the Corps “administrative appeals process” again.
Neither the courts nor the Corps consider a permit as “final” until you exhaust the administrative appeals process. To do so, you must decline the Corps’s proffered permit and submit a request for appeal based on the permit.
- The Final Permit.
The outcome of the permit appeal will be either a decision by the Corps that your appeal has no merit, or, because the appeal had merit, a permit that is somewhat modified from the one originally offered.
Either of these outcomes is considered “final agency action” and can be appealed through the courts.
Only after you have completed all of the above steps will a court likely find that the Corps has taken an action that is reviewable.
Obviously, completing all these steps is time-consuming, so the best way to keep your project moving forward is to try to work with the Corps. You should only consider litigation as a last option.
If you have questions for Ask the Lawyer, click here.
There is no guarantee that your question will be answered in this format, so if you have a particular legal concern that requires immediate attention, contact the NAHB Legal Research Service at 800-368-5242 x8491.
"Ask the Lawyer" is a service of the NAHB Legal Action Committee and NAHB Building Products Issues Committee. The information provided is intended to familiarize you with the law in this area. It is not intended to be an exhaustive presentation of legal information on this particular subject, and in no way constitutes an opinion of law. Your own attorney must review this information to determine how it may apply to your particular situation.
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