AGC Asks Supreme Court to Grant Adequate, Timely Means to Challenge WOTUS Determinations

Today, March 30, the U.S. Supreme Court will hear oral arguments in the case U.S. Army Corps of Eng'rs v. Hawkes Co. Inc. This case has important implications for construction work that occurs in, or around, water or wetlands.  The central question in the case is whether landowners and operators may “go to court” if they disagree with the federal government’s finding that “Waters of the United States” (WOTUS) are present on a particular site.  Earlier this month, AGC joined with industry groups representing agriculture, mining, manufacturing, and petroleum and gas interests in filing a joint “friend-of-the-court (amicus) brief” with the Court in support of Hawkes’ lawsuit against the government.

The Supreme Court will resolve a split in the circuit courts regarding whether the recipient of a jurisdictional determination (JD) can sue before the Corps or the U.S. Environmental Protection Agency takes enforcement or permitting action, under the Clean Water Act, based on the jurisdictional finding.  A decision is expected by the end of June 2016.

AGC’s joint amicus brief argues that “the regulated community must be afforded a way to respond, at a definitive but still early point in the process, to overly aggressive determinations” that WOTUS are present on land, which makes the property subject to CWA restrictions and permitting. The brief explains why the Corps’ JDs, which are “the hallmark of ‘final agency action,’” must be afforded immediate review in civil court. 

AGC members’ construction activities often involve dredge-and-fill activities in waters and wetlands.  Whether those activities require a CWA Section 404 permit from the Corps depends on whether they occur in WOTUS – a statutory term that agencies and courts have found difficult to construe.  As AGC’s brief explains, the resulting uncertainty over the scope of federal jurisdiction over wet areas has “unfairly exposed amici’s members to the risk of civil and criminal liability under the CWA.”  The federal government’s broad jurisdictional theory affects construction site operators engaged by landowners to improve real property.  Any determination that a property contains jurisdictional WOTUS “significantly impacts how the land may be used and dramatically raises the cost, and often reduces the feasibility of constructing critical infrastructure… [and opens the door for] severe criminal and civil penalties and third party litigation” the brief states.  If the Supreme Court extends immediate judicial review to JDs, it could provide the construction and development industries with a way to respond, at the outset of the project, to unacceptable delineations. 

As AGC’s brief lays out, “[g]iven the great legal and factual uncertainty about what features constitute jurisdictional waters under the CWA, and the cost, delay and disruption involved in seeking a permit, it is of immense importance to amici and their members that Corp’s jurisdictional determinations can immediately be challenged in court.”

For more background on this case and why it is important for construction, click here.  If you have additional questions, please contact Leah Pilconis, AGC’s senior environmental advisor, at

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