The U.S. Supreme Court issued a that will give the construction and development industries a way to respond immediately to overly aggressive assertions by the federal government that the property they want to build contains jurisdic颅tional 鈥淲aters of the United States鈥 (WOTUS). A 鈥渏urisdictional determination鈥 (JD) significantly impacts how land may be used, dramatically raises costs, and often reduces the feasibility of constructing critical infrastructure. 麻豆视频 submitted a joint 鈥渇riend of the court鈥 brief in the case, US Army Corps of Engineers v. Hawkes Co., making a strong case for why it is vital for contractors to know with certainty whether their projects contain WOTUS.
In a fact-pattern all too familiar to 麻豆视频 members: the case involved landowner(s)/operator(s) who wanted to engage in an activity in a wet area but the federal government put all activities on hold when it determined the property contained WOTUS 鈥 which triggered the need to first apply for a costly and time consuming Clean Water Act Section 404 permit to authorize the earth-disturbing work. Going ahead without a permit puts both landowners and construction contractors at risk of substantial penalties and even possible jail time. Today, the United Stated Supreme Court issued a decision that allows landowners and operators in these situations to proceed immediately with a lawsuit that challenges the federal government鈥檚 claim to jurisdiction over their land, when they disagree with it.
The Department of Justice (DOJ) had argued on behalf of the U.S. Army Corps of Engineers (Corps) that property owners who disagree with an approved JD 鈥 and instead believe their land includes no protected waters 鈥 can either seek a CWA Section 404 permit and then sue over its terms or discharge without a permit and raise jurisdiction as a defense against a federal enforcement action. 鈥淣either alternative is adequate. As we have long held, parties need not await enforcement proceedings before challenging final agency action where such proceedings carry the risk of 'serious criminal and civil penalties,'鈥 Chief Justice Roberts wrote in the Court鈥檚 10-page opinion. They shouldn鈥檛 have to wait until the end of the permitting process, which 鈥渃an be arduous, expensive and long,鈥 he added. DOJ鈥檚 鈥渃ount your blessings argument" (i.e., landowners/operators benefit from the JD process the Corps created and lawsuits shouldn鈥檛 be allowed until after the Corps takes permitting or enforcement action) is not an "adequate鈥 response where there is the risk of serious criminal and civil penalties, Roberts wrote.
The Court鈥檚 findings closely track the points that explains why 鈥渢he regulated community must be afforded a way to respond, at a definitive but still early point in the process, to overly aggressive determinations鈥 that WOTUS are present on land. 麻豆视频 was the only trade association to advance the commercial construction industry鈥檚 interest in the outcome of this case and, once again, 麻豆视频 has succeeded in changing facts on the ground. This decision will have a material impact on the way that the Section 404 permit program actually functions.
"For a landowner or operator faced with an adverse jurisdictional determination, therefore, the only 'adequate remedy in a court' is immediate review of the jurisdictional determination itself," 麻豆视频's brief states.
For more background on 麻豆视频鈥檚 involvement in this landmark case and why it is important for construction, click here and here. For additional question, please contact 麻豆视频鈥檚 Leah Pilconis at pilconisl@agc.org