In 2011 the U.S. Army Corps of Engineers (Corps) issued a jurisdictional determination (JD) to a small business in Louisiana stating that its private property contained federal wetlands and that the company would need to obtain a costly and time-consuming permit in order to move forward with development plans. The Corps' issued the JD despite the fact that the Agency previously indicated the land was not subject to Clean Water Act (CWA) jurisdiction. The company challenged the validity of the JD in court, relying on a previous Supreme Court decision allowing private landowners to challenge environmental compliance orders issued by federal agencies.
Last month, the Fifth Circuit ruled in favor of the Corps in Belle Co. v. Corps of Engineers, ruling that JDs are not subject to judicial review. This means that, in the Fifth Circuit, small businesses and landowners who receive JD's may not challenge the Corps immediately in court, even if the Agency claims that dry land on private property actually contains wetlands subject to federal jurisdiction. Under the Fifth Circuit's decision in Belle Co., landowners who wish to challenge the Corps' claim of federal jurisdiction must wait until completion of the CWA permitting process, a costly ordeal which, in many instances, will effectively prevent landowners from making productive use of their own property.
This court decision will negatively impact development projects, and in some cases will shut down land use entirely due to extreme permitting costs. This decision echoes a disturbing trend in which the Corps and EPA officials have indicated that CWA jurisdiction does not implicate private property rights concerns. Even more worrisome is the precedent now set for the Corps to issue JDs to landowners in order to leverage their environmental agenda against private property owners. As EPA and the Corps seek to increase their power through the controversial "waters of the United States" proposed rule, the Fifth Circuit's decision means less accountability for the bureaucrats who will be in charge of implementing the proposed rule.