As previously covered by this blog, on May 31, in a unanimous ruling, the eight-member U.S. Supreme Court held that a final determination by the U.S. Army Corps of Engineers (Army Corps) as to whether a property contains “waters of the United States,” subject to Clean Water Act regulations, is a final agency action subject to judicial review under the Administrative Procedure Act, as in U.S. Army Corps of Engineers v. Hawkes, 578 U.S. (2016).
The Clean Water Act prohibits the discharge of pollutants without a permit into “navigable waters,” which the act further defines as “waters of the United States,” 33 U.S.C. Sections 1311(a),1362(7),(12). Many development projects result in the discharge of pollutants into waters of the United States. When a landowner seeks to develop his land, he can proceed without a permit, but may instead desire certainty that he will not be subjected to civil or criminal penalties for violating the Clean Water Act by illegally discharging pollutants into waters of the United States. He can do so by identifying and delineating wetlands early in the project planning process, and verifying those delineations with the Army Corps.
Read more on the implications of this ruling for Pennsylvania in my Legal Intelligencer/Pennsylvania Law Weekly column here.