On May 31, 2016, the U.S. Supreme Court, in U.S. Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807 (2016), unanimously held that a jurisdictional determination (JD) issued by the U.S. Army Corps of Engineers (Corps) identifying the extent of “waters of the United States” (WOTUS) under the Clean Water Act (CWA or Act) may be judicially challenged. This is an important decision for public and private sector entities engaged in land use and development. The Hawkes decision, combined with the Court’s earlier decision in Sackett v. EPA, 132 S. Ct. 1367 (2012), allow entities to challenge claims of CWA jurisdiction by the Corps and the U.S. Environmental Protection Agency (EPA). Hawkes is also a shot across the bow that should give EPA pause on continuing efforts to expand the scope of CWA jurisdiction via the WOTUS rule and claimed CWA regulatory authority over pollutants entering groundwater.
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