November 15, 2018


Return to WOTUS and the Reach of CWA Jurisdiction


Current Status | Background information | Decisions/court documents | Related Publications
Relevant committee pages | Additional links



Current Status


January 6, 2017, U.S. Army Corps issued final package of nationwide permits (“NWPs”). NWPs do not refer to or apply WOTUS rule in light of the stay ordered by the Sixth Circuit. Package includes 50 reissued NWPs and 2 new NWPs authorizing removal of low-head dams that pose a threat to boaters (NWP 53), and construction and maintenance of living shorelines in estuarine and marine waters and the Great Lakes (NWP 54). The NWPs, which were granted a waiver from President Trump’s 60-day regulatory freeze, take effect on March 19, 2017 and expire March 22, 2022.


Decisions/court documents


Pruitt Moves to Constrain EPA’s Power to Veto 404 Dredge and Fill Permits. On June 26, 2018, EPA Administrator Scott Pruitt signed a memorandum directing the agency to draft regulations that would significantly restrict EPA’s authority to veto dredge and fill permits issued by the Army Corps under section 404 of the CWA. Specifically, Pruitt directed the Office of Water to draft a proposal that would, among other things, eliminate EPA’s ability to veto 404 permits preemptively or retroactively, require regional administrators to obtain approval from headquarters before initiating the veto process, and open the veto process to public comment.  


Conviction upheld based on Kennedy’s interpretation of CWA jurisdiction.  In United States v. Robertson, No. 16-30178 (9th Cir. Nov. 27, 2017), the Ninth Circuit upheld the conviction of a Montana resident charged with violating the CWA. The panel affirmed the district court’s reliance on the “significant nexus” test articulated by Justice Kennedy in Rapanos as the proper standard governing federal jurisdiction under the CWA. In accepting the “significant nexus” test, the court rejected the more restrictive test laid out by Justice Scalia in Rapanos.


   Pruitt Assumes Control Over Key Jurisdictional Decisions. On March 30, 2018, EPA Administrator Pruitt issued a memo rescinding the authority previously delegated to regional administrators to exercise two of EPA’s key powers under the CWA. Pursuant to the memo, the Administrator now has the sole authority over EPA’s jurisdictional determinations regarding wetlands and small waterways. Although most such jurisdictional determinations are made by the Army Corps, EPA has the authority to take over jurisdictional determinations in “special cases…where significant issues or technical difficulties are anticipated or exist.” The Administrator also assumed sole authority to exercise  EPA’s power to veto the Army Corps’ Section 404 dredge and fill permitting decisions—an authority that has only been exercised thirteen times since the CWA was signed into law.


Foster v. Vilsack, 820 F.3d 330 (8th Cir. April 11, 2016), cert. denied, No. 16-186, 2017 WL 69190 (U.S. Jan. 9, 2017) – Pursuant to “swampbuster” provisions of Food Security Act of 1985, USDA determined that a portion of plaintiff-appellant’s farm constituted wetlands.  The court concluded that substantial evidence supported USDA’s findings that the property (1) had requisite hydrology to qualify as wetland and (2) would support a prevalence of hydroponic vegetation under normal circumstances, and thus affirmed the district court’s grant of summary judgment in favor of USDA. Although plaintiff-appellant’s petition for certiorari implicated a circuit split over whether the deference courts afford to an agency’s interpretation of its own regulation under Auer v. Robbins, 519 U.S. 452 (1997), extends to an agency’s construction of its own field manual, the Supreme Court denied the petition.



Mingo Logan Coal Co. v. EPA, 829 F.3d 710 (D.C. Cir. July 19, 2016) – Four years after the Army Corps issued plaintiff-appellant a CWA Section 404 dredge-and-fill permit with EPA’s concurrence, EPA revoked the permit with respect to a majority of the authorized discharge area on the basis that further study revealed that the project would result in “unacceptable adverse effect[s],” 33 U.S.C. § 1344(c), to wildlife and wildlife habitat. Concluding that EPA considered the relevant factors and adequately explained its decision, the court upheld the revocation, characterizing it as “a product of [EPA’s] broad veto authority under the CWA.” The court rejected Mingo Logan’s argument that EPA improperly failed to consider the costs incurred in reliance on the permit on the narrow grounds that Mingo Logan did not raise that claim with EPA or in the district court.



Gulf Restoration Network v. U.S. Army Corps of Engineers, No. CV 15-6193, 2016 WL 4987256, (E.D. La. Sept. 19, 2016) – Plaintiff filed an APA claim after the Army Corps refused to reopen a public comment period related to the potential issuance of a CWA Section 404 dredge-and-fill permit. The court granted the Army Corps’ motion to dismiss, ruling that the Corps’ decision did not meet either prong of the test established in Bennett v. Spear, 520 U.S. 154 (1997), and thus did not constitute a final agency action subject to judicial review under the APA. The court held that insufficient public notices are not final agency actions, but merely an intermediate step, and thus do not constitute grounds for judicial review.



Duarte Nursery, Inc. v. United States Army Corps of Engineers, No. 2:13-CV-02095-KJM-AC, 2016 WL 4717986 (E.D. Cal. June 10, 2016) – Plaintiff received a letter from ACOE instructing him to stop his wheat growing operation because plowing had disturbed wetlands that qualified as waters of the Untied States. The court ruled (a) that the letter constituted a judicially reviewable final agency action, (b) that the letter was not an enforcement action and did not infringe on his property rights, and (c) that the plowing constituted discharge of a pollutant.



On March 23, 2017, the district court denied plaintiff’s motion for reconsideration, or, in the alternative, to certify an interlocutory order for appeal to the Ninth Circuit. Although the court recognized that plaintiff raised a “controlling question of law with respect to whether the plowing regulation is applicable here, after nearly twenty-four years of no activity that meets the applicable definition of farming,” it concluded that plaintiff failed to demonstrate that an interlocutory appeal was appropriate.


U.S. Army Corps of Engineers. v. Hawkes, 136 S.Ct. 1807 (May 31, 2016) – In a unanimous decision, the Supreme Court held that final (or “approved”) jurisdictional determinations issued by the Army Corps constitute final agency actions under the two-prong test established in Bennett v. Spear, 520 U.S. 154 (1997), and are thus subject to judicial review under the APA.



On remand, the district court rejected ACOE’s jurisdictional determination. Hawkes Co. v. United States Army Corps of Engineers, No. CV 13-107, 2017 WL 359170 (D. Minn. Jan. 24, 2017).



In light of its decision in Hawkes, the Supreme Court vacated and remanded a Fifth Circuit decision in which the panel held that approved jurisdictional determinations are not reviewable final agency actions.

Order entered in Kent Recycling Services LLC v. United States Army Corps of Engineers (Supreme Court no. 14-493).

   Significant Nexus Upheld:  Precon Dev. Corp. v. U.S. Army Corps of Eng’rs, 4th Cir., No. 13-2499, rehearing denied, 5/8/15

Related Publications

   Turtles all the way down: Justice Scalia and the Clean Water Act
Trends November/December 2016

   Water Quality and Wetlands Committee Newsletter
Vol. 14, No. 2, August 2016
A joint newsletter of the Water Quality and Wetlands Committee, the Water Resources Committee, and the Constitutional Law Committee.

   Supreme Court: United States Army Corps of Engineers v. Hawkes Co.
Trends July/August 2016

   Judicial challenges to the Clean Water Rule: A brief and relatively painless guide for the procrastinator
Trends March/April 2016

   Wetland mitigation banking: An innovative practice grows to a major industry and provides an additional land revenue option
Trends September/October 2015

   The Fifth Circuit declines to extend Sackett to jurisdictional determinations
Trends March/April 2015

   The Court’s 2013 Term and environmental law: A whimper, not a bang
Trends September/October 2013

   Sackett v. EPA: Implications for administrative compliance
Trends September/October 2012

   Sackett v. EPA: Parties may challenge Clean Water Act compliance orders
Trends July/August 2012

   The Clean Water Act Handbook, Third Edition

Links to relevant committee pages

   Water Quality and Wetlands Committee

   Water Resources Committee

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