Environmental -- 2016

U.S. Army Corps of Engineers v. Hawkes Co.   (U.S. Supreme Court)

When courts may review CWA jurisdictional decisions

Whether a parcel of land contains waters of the United States that are subject to federal regulatory jurisdiction under the Clean Water Act (CWA) is a question of great practical importance to those who own, use or improve the land. When land is found to be jurisdictional, a host of regulatory obligations are triggered, including the requirement to obtain a permit from the U.S. Army Corps of Engineers before discharging any dredged or fill material into those jurisdictional waters. The Corps has broadly construed the CWA to prohibit any productive use, improvement, alteration, or repair of property without first obtaining a permit.

Using the land without a permit risks draconian criminal and civil penalties in government enforcement actions, or private enforcement litigation from environmental or neighborhood activists. The precise scope of the CWA, and the land to which it applies, depend on statutory terms that agencies and courts have found difficult to interpret. The resulting uncertainty over the scope of the CWA has unfairly exposed manufacturers to the risk of civil and criminal liability under the CWA, and the federal government’s broad jurisdictional theory sweeps millions of landowners and operators into the agencies’ jurisdiction.

The NAM filed a brief explaining that the regulated community must be afforded a way to respond, at a definitive but still early point in the process, to overly aggressive jurisdictional determinations. Any determination that such property contains jurisdictional waters of the United States significantly impacts how the land may be used and dramatically raises the cost, and often reduces the feasibility, of constructing critical infrastructure.

On May 31, the Court ruled that the Corps' approved jurisdictional determination is final agency action that is judicially reviewable. The determination ended the agency's decisionmaking process, and legal consequences flow from it. A jurisdictional statement stating that property is not subject to the Corps' jurisdiction gives the property owner a five-year safe harbor from civil enforcement proceedings and limits Clean Water Act liability. Conversely, an affirmative finding of jurisdiction deprives owners of that safe harbor. This is a positive development for manufacturers who want to challenge Corps' decisions that claim jurisdiction to require Clean Water Act permits for development or other uses of their property.

Related Documents:
NAM amicus brief  (March 1, 2016)


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