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Dawson members explain SCOTUS ruling impact on Congress, Army Corps of Engineers

Updated: Jun 5, 2020

Credit: Dave Davis, Pine Barrens, NJ

Credit: Dave Davis, Pine Barrens, NJ

On May 31, a unanimous Supreme Court issued a decision with significant implications for federal clean water laws and especially the Obama Administration’s “Waters of the U.S.” regulation.  The Court held that landowners could challenge an Army Corps of Engineer’s assertion of Clean Water Act jurisdiction over a parcel of land in Minnesota more than 120 miles from the Red River.

So what will be the implications for Congress as it tries to pass a Water Resources Development Act (WRDA) this year? And how will the Court’s action affect the U.S. Army Corps of Engineers?

Writing on The Hill’s Congress Blog, our colleagues Larry Liebesman and Gen. (ret) Don Riley offer their thoughts on the decision’s impact.  Larry is a former environmental litigator at the U.S. Justice Department. Don was Deputy Commanding General of the U.S. Army Corps of Engineers from 2008-2010.  An excerpt:

While not directly addressing the Administration’s WOTUS rule, Justice Kennedy last month went out of his way to address regulatory overreach, writing that the Clean Water Act’s “reach is notoriously unclear [and] remains a cause for concern.”  He added that the Act “continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property….”

These comments suggest that Justice Kennedy might have concerns that the Administration’s WOTUS rule, particularly its broad and uncertain sweep, misinterprets his “significant nexus” opinion in the Rapanos case.

The Court’s decision also has deep implications for the Army Corps of Engineers administration of the Clean Water Act Section 404 permit program. First, the Corps will need to ensure that its administrative record fully supports any determination findings in the likely event of future lawsuits, which will further strap the Agency’ s resources

Second, the Corps could also increase the use of preliminary jurisdictional determinations that are clearly not final agency action in return for even more expedited review of permit applications.

For the whole article, please click here.


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