Poyner Spruill LLP
H. Glenn T. Dunn

October 18, 2016

The U.S. Supreme Court has ruled that a property owner can go to court to challenge a determination by the Army Corps of Engineers (Corps) that part of the property is “waters of the U.S.” or connected wetlands and therefore subject to permitting requirements under Section 404 of  the Federal Clean Water Act (CWA).

This decision is important because it allows a property owner to challenge Corps jurisdiction early in the Section 404 regulatory process. Previously the property owner had to accept the Corps’ jurisdictional determination then go through the permitting process and get a final permit decision. If dissatisfied with the permit decision, the property owner could file a legal challenge, including a challenge to jurisdiction and any other objectionable aspect of the permit decision. Now the jurisdictional decision can be challenged without going through the permitting process. If the court finds the Corps has no jurisdiction, the property owner can avoid entirely the expense of preparing and applying for a Section 404 permit. If the court rules jurisdiction covers less area than the Corps’ determination, the property owner can at least tailor the project design and application and will have avoided the choice of either acceding to the Corps’ initial overly expansive jurisdictional determination or submitting a project design and permit application that may later have to be changed based on the court’s ruling on jurisdiction.

This article is being provided for informational purposes only and not for the purposes of providing legal advice or creating an attorney-client relationship. You should contact an attorney to obtain advice with respect to any particular issue or problem you may have. In addition, the opinions expressed herein are the opinions of Mr. Dunn and may not reflect the opinions of Synergy Environmental, Inc., Poyner Spruill LLP or either of those firms’ clients.