Navigating Jurisdictional Determinations Under the Clean Water Act: Impact of U.S. Army Corps of Engineers v. Hawkes

On May 31, 2016, the Supreme Court issued Army Corps of Engineers v. Hawkes Co., a highly anticipated decision related to the continuing controversy over the reach of the Clean Water Act. The Court unanimously held the Army Corps of Engineers’ approved JDs are final agency actions and can be appealed to federal district court.

This will allow parties seeking a JD to immediately appeal to a district court to avoid costs and the time of a full-blown permit application and to challenge to resolve jurisdictional issues. This decision will likely result in a flood of JD challenges. However, while property owners, developers and their counsel can see this decision as a win, it leaves several questions.

Will the Corps be reluctant to issue approved JDs and shift to issuing more preliminary JDs—or no longer provide them at all to avoid burdensome legal challenges? Will the Corps and EPA bypass Hawkes by revising their Memorandum of Agreement (MOA) to eliminate any safe harbor provisions for approved JDs or revoke the MOA? How will the decision impact the ability of property owners and developers to identify protected waters and determine whether the waters fall within CWA protected waters?

Listen as our authoritative panel of practitioners examines the Supreme Court’s decision in Hawkes and what that decision means for determining whether waters are protected under the CWA. The panel will discuss the implications of the decision for the JD process and future litigation. The panel will offer best practices for navigating jurisdictional determinations.

Outline
I. Hawkes and what the decision means for those seeking to identify whether waters are protected under the CWA

II. Implications of the decision
A. JD process
B. Future litigation

III. Best practices
A. Determining whether waters are protected
B. Navigating jurisdictional determinations

Benefits

The panel will review these and other key issues:

• What will Hawkes mean for property owners seeking a determination regarding whether water is protected under the CWA?
• What factors should counsel consider when seeking a JD or challenging one?
• How will the Corps treat JDs in light of the Court’s decision in Hawkes?

Faculty

Christopher J. Carr, Partner
Morrison & Foerster, San Francisco

Mr. Carr serves as Chair of the firm’s Environment and Energy Group and as Co-Chair of the UAS/Drone Group and the Clean Technology Group. He represents land developers, business concerns, private individuals, public agencies and nonprofits in all areas of environmental and natural resource law. In particular, Mr. Carr’s practice focuses on permitting and litigation under the federal Endangered Species Act, the Clean Water Act, and the National Environmental Policy Act, as well as their California counterparts.

Dr. Michael Josselyn, Principal
WRA, San Rafael, Calif.

As a Co-Founder and former President of WRA Inc., Dr. Josselyn formed the company to incorporate the best scientific information on the environment to assist clients with environmental compliance and to assure successful implementation of habitat protection and restoration plans. His work has focused on environmental permitting and habitat restoration, large scale restoration and conservation planning, and expert testimony.

Kirsten L. Nathanson, Partner
Crowell & Moring, Washington, D.C.

Ms. Nathanson’s practice focuses on environmental litigation, enforcement defense, risk assessment, and regulatory counseling under the major federal environmental and public lands statutes. She currently serves as a member on the firm's Environment & Natural Resources Group Steering Committee. Her litigation experience covers the Clean Water Act, Clean Air Act, Endangered Species Act, NEPA, RCRA, and CERCLA, encompassing citizen suit defense, regulatory challenges, and remediation cost recovery, among others.

The webinar fee is $297.