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

Recording of a 90-minute CLE webinar with Q&A


Conducted on Thursday, September 29, 2016

Recorded event now available

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Program Materials

This CLE will provide guidance to environmental counsel on jurisdictional determinations (JDs) and identifying waters protected by the Clean Water Act after the Supreme Court’s recent decision in Army Corps of Engineers v. Hawkes Co. The panel will examine the implications of the decision for the JD process and future challenges in the courts.

Description

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.

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Outline

  1. Hawkes and what the decision means for those seeking to identify whether waters are protected under the CWA
  2. Implications of the decision
    1. JD process
    2. Future litigation
  3. Best practices
    1. Determining whether waters are protected
    2. 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
Christopher J. Carr

Partner
Morrison & Foerster

Mr. Carr serves as Chair of the firm’s Environment and Energy Group and as Co-Chair of the UAS/Drone Group and...  |  Read More

Dr. Michael Josselyn
Dr. Michael Josselyn

Principal
WRA

As a Co-Founder and former President of WRA Inc., Dr. Josselyn formed the company to incorporate the best scientific...  |  Read More

Kirsten L. Nathanson
Kirsten L. Nathanson

Partner
Crowell & Moring

Ms. Nathanson’s practice focuses on environmental litigation, enforcement defense, risk assessment, and...  |  Read More

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