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Court Holds Challenge to Issuance of Section 404 Permit is Moot Because Wetlands Filled While Case Pending

By: Paul S. Weiland

In Sierra Club v. United States Army Corps of Engineers, 2008 WL 2048359 (3d Cir. 2008), the United States Court of Appeals for the Third Circuit held that a challenge to the issuance of a Clean Water Act section 404 permit was moot because, while the case was pending, the permit holder exercised its rights and filled most of the jurisdictional wetlands. For permit holders, this case affirms the ability to exercise permit rights so long as they are not enjoined from doing so.

In 2005, the Army Corps of Engineers (Corps) issued a Clean Water Act section 404 permit to the developer of the Meadowlands Xanadu Redevelopment Project in New Jersey for the fill of 7.69 acres of wetlands impacted by the redevelopment project. A number of environmental groups challenged the decision of the Corps to issue the permit in federal district court alleging violations of the Clean Water Act, the Administrative Procedure Act, the National Environmental Policy Act, and the Rivers and Harbors Act. The plaintiffs sought an injunction from the district court but that request was denied. Subsequently, the court ruled in favor of the federal defendant on all grounds. The plaintiffs timely appealed that decision to the Third Circuit, but before the appeal could be heard the permit holder filled 7.57 acres of the 7.69 acres of wetlands covered by the challenged permit.

The Third Circuit was then faced with the question of whether the filling of the wetlands subject to the challenged permit rendered plaintiffs' claims moot. The court held the challenge is moot under the doctrine of prudential mootness, which is a doctrine that provides a basis for dismissal of a case when changes in circumstances from the beginning of the lawsuit have forestalled any occasion for meaningful relief. Id. at 2. The court focused on the alleged injuries to plaintiffs' recreational and aesthetic interests, and concluded that the wetlands that plaintiffs claimed to have enjoyed had been destroyed and could not be restored, and thus held that "the substantially complete fill forecloses the opportunity for any meaningful relief to Plaintiffs' alleged injuries." Id. Although there remained a small portion of the wetlands not yet filled (0.12 acre), the Court held that preserving those small, isolated portions, would not provide any "meaningful" relief to the plaintiffs' alleged recreational and aesthetic injuries. Id.

A concurring opinion noted the inherent "danger" created by the decision that permit holders might move quickly to exercise their permit rights and suggested that in certain situations temporary restraining orders or stays may be appropriate to ensure that wetlands are not swiftly filled in order to moot any controversy. Id. at 3. This concurrence also recommended amendment of the implementing regulations to provide for a waiting period between issuance of a permit and the start of construction to "facilitate judicial review and preserve meaningful remedies." Id. But here the plaintiffs did seek preliminary relief, and the district court balanced the equities and denied such relief. And the policy proposal in the concurring opinion for a waiting period would result in delays for all projects though only a small fraction of the permits issued are challenged in court and only a fraction of those permits are invalidated.

Paul Weiland is the Land Use Practice Group Leader at Nossaman. He counsels clients regarding environmental and land use matters and litigates such matters in trial and appellate courts under a variety of statutes, including the Endangered Species Act. He can be reached at (949) 833-7800 or

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