In the biggest Clean Water Act (CWA) case in a decade, the US Supreme Court will soon decide whether government assertions of CWA jurisdiction may be challenged in court. All commercial activities that involve the use of land or waterbodies can be impacted by CWA regulatory burdens. Thus, the outcome of this case has the potential to affect all public and private sector entitie s engaged in land use and development including the banking, real estate, retail, energy and agriculture industries. Urging the Supreme Court to uphold judicial review, Hunton & Williams lawyers Virginia Albrecht, Deidre Duncan, Andrew Turner, Karma Brown, Kristy Bulleit, and Brian Levey on behalf of the Foundation for Environmental and Economic Progress and the Utility Water Act Group filed an amicus brief on March 2 highlighting the importance of jurisdictional determinations to landowners and industry, including “to avoid or minimize impacts to ‘waters of the United States,’ and thereby avert or limit labyrinthine CWA permit procedures.”

Prior to development or conveyance of property, landowners generally must determine whether their site is subject to federal regulation under the CWA. An official jurisdictional determination (JD) from the US Army Corps of Engineers (the Corps) describes which areas, if any, are jurisdictional and governs whether the landowner will need a permit to develop their property.

In the case before the Court, U.S. Army Corps of Engineers v. Hawkes Co., the Corps issued a JD asserting jurisdiction over wetlands on a peat mine in Minnesota. The landowners and company disagree with the government’s assertion that the land is subject to federal regulation. The government says the landowner can’t challenge the JD in court, but instead must either apply for a permit or defend itself in an enforcement action. After an Eighth Circuit Court of Appeals decision supporting judicial review, the government appealed the case to the Supreme Court. A favorable decision by the Supreme Court would give Hawkes an adequate remedy to challenge the JD in court and would establish an important check nationwide on government assertions of CWA jurisdiction.

In support of the Hawkes Co., Hunton & Williams lawyers prepared an amicus brief for its clients providing the Court with real-world examples of the immediate and practical impacts jurisdictional determinations have on their recipients.

Highlights of the Brief:

  • Numerous examples, fold-out graphics and other exhibits demonstrate the clear impact JDs have on land use and development.
  • The government devoted four pages of its opening brief to criticizing a study cited by the Supreme Court in a 2006 CWA case. The author of that study, Professor David Sunding, joined the brief and submitted a declaration defending his data and conclusions.
  • The brief has received high praise from industry leaders and extensive media coverage. In response to the lack of support for the government’s position, Virginia Albrecht was recently quoted as saying, “Who wants to march up the hill in support of the notion that the executive branch can do whatever they want and the affected citizen has no recourse?” For additional press coverage, read Bloomberg BNA Daily Environment Report articles “No Backers for U.S. Position in Supreme Court Water Case” and “Recourse Needed for Water Jurisdiction Findings: Briefs.”​

This is another example of Hunton & Williams leadership in this critical area of law and coincides with our efforts in litigating the US Environmental Protection Agency’s “Clean Water Rule,” which is also likely to reach the Supreme Court..