Today, March 30, the U.S. Supreme Court will hear oral arguments in the case This case has important implications for construction work that occurs in, or around, water or wetlands. The central question in the case is whether landowners and operators may 鈥済o to court鈥 if they disagree with the federal government鈥檚 finding that 鈥淲aters of the United States鈥 (WOTUS) are present on a particular site. Earlier this month, AGC joined with industry groups representing agriculture, mining, manufacturing, and petroleum and gas interests in filing a joint 鈥渇riend-of-the-court (amicus) brief鈥 with the Court in support of Hawkes鈥 lawsuit against the government.
The Supreme Court will resolve a split in the circuit courts regarding whether the recipient of a jurisdictional determination (JD) can sue before the Corps or the U.S. Environmental Protection Agency takes enforcement or permitting action, under the Clean Water Act, based on the jurisdictional finding. A decision is expected by the end of June 2016.
argues that 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, which makes the property subject to CWA restrictions and permitting. The brief explains why the Corps鈥 JDs, which are 鈥渢he hallmark of 鈥榝inal agency action,鈥欌 must be afforded immediate review in civil court.
AGC members鈥 construction activities often involve dredge-and-fill activities in waters and wetlands. Whether those activities require a CWA Section 404 permit from the Corps depends on whether they occur in WOTUS 鈥 a statutory term that agencies and courts have found difficult to construe. As AGC鈥檚 brief explains, the resulting uncertainty over the scope of federal jurisdiction over wet areas has 鈥渦nfairly exposed 补尘颈肠颈鈥檚 members to the risk of civil and criminal liability under the CWA.鈥 The federal government鈥檚 broad jurisdictional theory affects construction site operators engaged by landowners to improve real property. Any determination that a property contains jurisdictional WOTUS 鈥渟ignificantly impacts how the land may be used and dramatically raises the cost, and often reduces the feasibility of constructing critical infrastructure鈥 [and opens the door for] severe criminal and civil penalties and third party litigation鈥 the brief states. If the Supreme Court extends immediate judicial review to JDs, it could provide the construction and development industries with a way to respond, at the outset of the project, to unacceptable delineations.
As AGC鈥檚 brief lays out, 鈥淸g]iven the great legal and factual uncertainty about what features constitute jurisdictional waters under the CWA, and the cost, delay and disruption involved in seeking a permit, it is of immense importance to amici and their members that Corp鈥檚 jurisdictional determinations can immediately be challenged in court.鈥
For more background on this case and why it is important for construction, click here. If you have additional questions, please contact Leah Pilconis, AGC鈥檚 senior environmental advisor, at pilconisl@agc.org.