Supreme Court Decision Could Affect Waters of the U.S. Ruling

Last week, with an unanimous decision in the case of U.S. Army Corps of Engineers v. Hawkes, the U.S. Supreme Court ruled that jurisdictional determinations on private property made by the Army Corps of Engineers (Corps) can be challenged in court. The court’s ruling paves the way for private citizens and companies to potentially move forward at a more reasonable pace to develop their own land both before and after the Corps makes determinations about such land as a "water of the United States". Prior to the ruling, developers’ plans were frequently hindered and stalled for long periods of time, or indefinitely, due to a jurisdictional determination made by the Corps or Environmental Protection Agency (EPA) when the land in question was determined to be a "water of the United States" regardless of it being wet or dry in different seasons.

The court’s ruling will now likely call into question elements of the joint rule promulgated by the Corps/EPA known as the "Waters of the United States" or WOTUS rule. The WOTUS final rule determined what can be considered under the Clean Water Act, a "water of the US" and thus under the jurisdiction of the federal government, amounting to a very large jurisdictional expansion. The WOTUS rule is currently stayed nationwide while multiple legal challenges to the rule work their way through the court system.