Navigating Jurisdictional Determinations Under the Clean Water Act: Impact of U.S. Army Corps of Engineers v. Hawkes

On May 31, 2016, the Supreme Court issued Army Corps of Engineers v. Hawkes Co., a highly anticipated decision related to the continuing controversy over the reach of the Clean Water Act. The Court unanimously held the Army Corps of Engineers’ approved JDs are final agency actions and can be appealed to federal district court.

This will allow parties seeking a JD to immediately appeal to a district court to avoid costs and the time of a full-blown permit application and to challenge to resolve jurisdictional issues. This decision will likely result in a flood of JD challenges. However, while property owners, developers and their counsel can see this decision as a win, it leaves several questions.

Will the Corps be reluctant to issue approved JDs and shift to issuing more preliminary JDs—or no longer provide them at all to avoid burdensome legal challenges? Will the Corps and EPA bypass Hawkes by revising their Memorandum of Agreement (MOA) to eliminate any safe harbor provisions for approved JDs or revoke the MOA? How will the decision impact the ability of property owners and developers to identify protected waters and determine whether the waters fall within CWA protected waters?

Listen as our authoritative panel of practitioners examines the Supreme Court’s decision in Hawkes and what that decision means for determining whether waters are protected under the CWA. The panel will discuss the implications of the decision for the JD process and future litigation. The panel will offer best practices for navigating jurisdictional determinations.