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Supreme Court to Hear Water Case

March 11, 2016

In the biggest Clean Water Act (CWA) case in a decade, the US Supreme Court will soon decide whether government assertions of CWA jurisdiction may be challenged in court. All commercial activities that involve the use of land or waterbodies can be impacted by CWA regulatory burdens. Thus, the outcome of this case has the potential to affect all public and private sector entities engaged in land use and development including the banking, real estate, retail, energy and agriculture industries.

Prior to development or conveyance of property, landowners generally must determine whether their site is subject to federal regulation under the CWA. An official jurisdictional determination (JD) from the US Army Corps of Engineers (the Corps) describes which areas, if any, are jurisdictional and governs whether the landowner will need a permit to develop their property.

In the case before the Court, U.S. Army Corps of Engineers v. Hawkes Co., the Corps issued a JD asserting jurisdiction over wetlands on a peat mine in Minnesota. The landowners and company disagree with the government’s assertion that the land is subject to federal regulation. The government says the landowner can’t challenge the JD in court, but instead must either apply for a permit or defend itself in an enforcement action. A favorable decision by the Supreme Court would give Hawkes an adequate remedy to challenge the JD in court and would establish an important check nationwide on government assertions of CWA jurisdiction.