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
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.
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n Tuesday, January 31, President Trump nominated Tenth Circuit Judge Neil Gorsuch to replace Justice Antonin Scalia on the US Supreme Court. This advisory reviews several of Judge Gorsuch's opinions related to environmental and administrative law issues.
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