FIFTH CIRCUIT DECLINES REVIEW OF ARMY CORPS OF ENGINEERS’ JURISDICTIONAL DETERMINATION INVOLVING ASSUMPTION PARISH WETLAND ON PRIVATE PROPERTY

By TONI ELLINGTON

On July 30, 2014, the Fifth Circuit Court of Appeals determined that a jurisdictional determination by the Army Corps of Engineers on the presence of a wetland on private property was not a final agency action, and thus was not subject to judicial review.  The case, Belle Company, LLC and Kent Recycling, LLC v. U.S. Army Corps of Engineers, No. 13-30262, involved Belle Company’s goal to build a landfill on its property located in Assumption Parish, Louisiana.  Kent Recycling, LLC had an option to buy the land if it could be used as a solid-waste landfill.

The Army Corps of Engineers (“Corps”) issued a jurisdictional determination that the property contained wetlands which were subject to regulation under the Clean Water Act, which requires a party to obtain a permit before any discharge of dredged or fill materials into navigable waters.  See 33 U.S.C. §§1311(a), 1344.  The plaintiffs sued, alleging that the Corps’ jurisdictional determination should be set aside.  The U.S. District Court for the Middle District of Louisiana dismissed the suit for lack of subject matter jurisdiction, finding that the Corps’ jurisdictional determination was not a final agency action.  The Fifth Circuit affirmed this ruling.

In its decision, the Fifth Circuit noted that the Corps has an internal review procedure for jurisdictional determination decisions.

The complete Fifth Circuit opinion can be found at www.ca5.uscourts.gov.  For more information, contact Toni Ellington at (504) 599-8500.