Sixth Circuit Holds That Prolonged Permitting Processes Are Not A Final Action Warranting Judicial Review

On March 20, the U.S. Court of Appeals for the Sixth Circuit decided the case of Marquette County Road Commission v. U.S. EPA, et al. The opinion will not be published in the Federal Reporter. Both the trial court and the Sixth Circuit rejected the Marquette County Road Commission’s argument that the Environmental Protection Agency’s (EPA) actions and inactions amounted to a “veto,” and were thus a “final action” for purposes of the Administrative Procedure Act (APA).

Beginning in 2011, the Marquette County Road Commission submitted a Clean Water Act (CWA) Section 404 application to the Michigan Department of Environmental Quality (MDEQ)—which has delegated authority to issue such permits—seeking its approval of a permit to fill in 25 acres of wetlands to construct a county road. While the MDEQ was in favor of this request, EPA, which retains substantial oversight authority under the law, refused to grant the application for reasons the Marquette County Road Commission believed were arbitrary and capricious.

The permitting process was interminable in the eyes of the Marquette County Road Commission, and pursuant to the CWA at 33 U.S.C. § 1344(j), permitting authority finally passed to the U.S. Army Corps of Engineers (Corps). However, prolonging the permitting process, the permit application had to be resubmitted to the Corps. At that point, the Marquette County Road Commission declined to re-submit, “and the permitting process for County Road 595 came to a halt.”

Clearly frustrated by an interminable permitting process, the Marquette County Road Commission sued the EPA and Corps pursuant to the APA based upon: (a) EPA’s alleged use of arbitrary conditions and objections to refuse to approve the issuance of a Clean Water Act (CWA) Section 404 dredge and fill permit, and (b) the Corps’ request to the Marquette County Road Commission , after permitting authority to review the application had transferred to the Corps by operation of law, to resubmit the application and, generally, to start over.

After the lower court dismissed the lawsuit, an appeal was made to the Sixth Circuit. The Sixth Circuit noted that while these permitting processes were something of a “rigmarole,” nevertheless nothing these agencies did was contrary to the law. Indeed, since the Marquette County Road Commission withdrew its application, there was in fact nothing then for the courts to review. The Sixth Circuit stated that the Section 404 permitting process has the potential to be onerous, and so it was here.