Supreme Court Rules Landowners Can Challenge Jurisdictional Determinations

Yesterday, in a unanimous ruling, the U.S. Supreme Court held in USACE v. Hawkes Co. that approved jurisdictional determinations ("JD") are final actions which can be reviewed by the courts. Under the Clean Water Act a permit is required to discharge pollutants into waters of the United States. Due to the complexity of the statute and implementing regulations and guidance documents it is often very difficult to determine if a particular piece of property contains wasters of the United States. Prior to Hawkes, if a landowner disagreed with a JD they faced potentially significant enforcement action, both civil and criminal, for discharging without a permit or they were required to spend hundreds of thousands of dollars and years to obtain a wetland permit from the Army Corps of Engineers before they could appeal the Corp's determination that the property was a "water of the United States."