P&V Enterprises v. U.S. Army Corps of Engineers

Feb 19: In the U.S. Court of Appeals, D.C. Circuit, Case No. 07-5060. The Appeals Court explains that section 404 of the Clean Water Act (CWA) authorizes the Corps to regulate the discharge of dredged and fill material into “navigable waters,” which are “the waters of the United States, including the territorial seas.” In 1986, the Corps promulgated a definition of “waters of the United States.” In 2001, the Supreme Court held that the Corps had exceeded its authority under section 404(a) in promulgating the Migratory Bird Rule as applied to “an abandoned sand and gravel pit.” Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng’rs (SWANCC), 531 U.S. 159, 174 (2001). Because that rule raised “significant constitutional questions” by “invok[ing] the outer limits of Congress’ power” under the Commerce Clause, the Court held that “a clear indication” of Congressional intent was required and there was none.

In January 2003, the Corps issued an Advance Notice of Proposed Rulemaking (ANPRM requesting public input on issues associated with the definition of “waters of the United States” with the goal of developing proposed regulations that will clarify what waters are subject to CWA jurisdiction and affording full protection to these waters. After receiving approximately 130,000 comments, on December 16, 2003, the Corps and U.S. EPA issued a one-page press release announcing that it “would not issue a new rule on federal regulatory jurisdiction over isolated wetlands.”

On August 5, 2005, P&V Enterprises, et al filed suit, challenging the 1986 rule’s definition of “waters of the United States” as “facially invalid” under the Commerce Clause and alleged that the Corps had overstepped its authority in asserting jurisdiction over the Mojave River, which they said was an “isolated, intrastate” river. The complaint alleged that the Corps had overstepped its authority in asserting jurisdiction over the Mojave River. The Corps moved to dismiss the complaint pursuant to FED. R. CIV. P. 12(b)(1) for lack of subject-matter jurisdiction, asserting sovereign immunity and, alternatively, that if the complaint stated a claim under the Administrative Procedure Act (APA) it was "untimely."

P&V responded that the APA’s waiver of sovereign immunity applied regardless whether it was stating an APA claim and that the Corps had reopened the 1986 rule for facial challenge by issuing the ANPRM and Press Release in 2003. The district court dismissed the complaint for failure to state a claim.

The Appeals Court indicates that the issue on appeal is whether the Corps reopened consideration of a 1986 rule such that the district court erred in dismissing a facial challenge to the rule as untimely under 28 U.S.C. § 2401(a). In its final ruling the Appeals Court says, ". . .we affirm the dismissal of P&V’s facial challenge to the 1986 rule for lack of subject-matter jurisdiction, rather than for failure to state a claim. . .The court has long held that section 2401(a) creates 'a jurisdictional condition attached to the government’s waiver of sovereign immunity.' [precedent cited] On appeal, neither P&V nor the Corps has challenged this circuit’s precedent; therefore, we need not question our prior authority. See LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc). Consequently, the court has no occasion to address potential implications of recent Supreme Court decisions, and no need to reach the Corps’ alternative objection that P&V lacks standing."

Access the complete opinion (click here).