Wetlands Permitting Under Section 404 of the Clean Water Act: Do Proposals for an Administrative Appeals Process Have Any Appeal?
By Holly E. Dolbey
Congressional reauthorization of the Clean Water Act (CWA) has evoked a considerable response from legislators, environmentalists, landowners and developers. The reauthorization effort has focused, in part, on drastic reform of the Section 404 wetlands permitting program. Debate over federal wetlands protection has raged since its inception, largely because of the program's interference with the rights of private landowners. This interplay prompted one critic to proclaim that Section 404 is an "open wound across the body of environmental law, one of the simplest statutes to describe and one of the most painful to apply." More specific criticisms of Section 404 focus on delays and inconsistencies in the current permitting process. In response to such criticisms, proposals to revise the current regulation of wetlands have suggested both sweeping calls for change and fine-tuning of the existing regulatory strategy.
This Note addresses proposals for the establishment of an administrative appeals process within the United States Army Corps of Engineers (Army Corps), the authority responsible for implementing the Section 404 permitting program. Despite the potential efficiency drawbacks of an additional layer of review in wetlands permitting decisions, both the regulated community and environmentalists support proposals for an administrative appeals process. Nevertheless, the evolution of the two dominant proposals illustrates that a viable debate exists over the scope of an administrative appeals process. As originally proposed, the most influential bill in Congress supported administrative appeals for permit decisions only. The Clinton Administration has consistently supported a broader administrative appeals process under which the reviewing authority would consider not only permit decisions, but also wetlands determinations and administrative penalties. However, the Clinton Administration would limit the availability of an administrative appeal to permit applicants, while the bill would permit third parties, such as adjacent landowners and qualified environmental organizations, to appeal a permit issuance.
This Note supports the adoption of a broad administrative appeals process for Section 404 permitting decisions. Part II describes the Section 404 permitting process itself and introduces the current criticisms of the process as well as the proposals to reform the process by establishing an administrative appeals procedure. Part III briefly discusses the overall goals of an administrative appeals process to provide a framework for the analysis of several aspects of the specific proposals. Part IV analyzes the proposals for an administrative appeals process for wetlands permitting with reference to the goals of predictability, efficiency and acceptability, suggesting both substantive and procedural characteristics of the ideal appeals process. Specifically, this Part argues that authority over an administrative appeals process should reside in line officers within the Army Corps, that the appeals process should cover wetlands determinations and administrative penalties as well as final permitting decisions, and that third parties should have standing to appeal permit issuances. In conclusion, Part V suggests that, although reliance on administrative appeals to respond to specific criticisms of wetlands permitting should be limited, an administrative appeals process may reduce overall dissatisfaction with the Section 404 program.