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Environmental Blog

What U.S. Army Corps of Engineers v. Hawkes Co., Inc. Might Mean for the Corp’s JD Program and Clean Water Act Enforcement

The Supreme Court dealt the Obama Administration another Clean Water Act loss on May 31, 2016, ruling unanimously that landowners can more quickly go to court to challenge the federal government when it claims Clean Water Act jurisdiction over their property. The central issue in the case, U.S. Army Corps of Engineers v. Hawkes Co., Inc., was whether a jurisdictional determination (JD) issued by the U.S. Army Corps of Engineers (Corps) is a final agency action, and therefore subject to judicial review under the Administrative Procedure Act (APA). A JD can be “preliminary,” which merely advises that jurisdiction waters “may” be present, or “approved,” which definitively states that waters are present or absent, is administratively appealable and is generally valid for a period of five years, and which was the type challenged in Hawkes. This analysis discusses how the Court’s ruling — that landowners can challenge an approved JD without first going through a costly permitting program or proceeding with their development and risking an enforcement action by the government — may affect whether and how the Corps will continue its JD program, and what this might mean for government enforcement under Section 404 of the Clean Water Act. Read the entire article here.

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Michael B. Wigmore

Michael B. Wigmore Partner

Larry W. Nettles

Larry W. Nettles Partner

Brandon M. Tuck

Brandon M. Tuck Counsel