The Clean Water Act extends federal regulatory jurisdiction over all “waters of the United States.” Land and water features that are deemed by regulators to be “waters of the United States” include not only traditional navigable waters, but also a wide range of ephemeral or intermittent features with tenuous connections to such features. Think dry drainage ditches and standing puddles. If a land or water feature is determined to be “jurisdictional” under the Clean Water Act, landowners and users must obtain a permit from the US Army Corps of Engineers before engaging in almost any productive use of the land.

Upon request, the Corps provides landowners with “jurisdictional determinations”—official pronouncements of whether a particular feature qualifies as a “water of the United States.” On March 30, the Supreme Court will hear oral argument in US Army Corps of Engineers v. Hawkes, which asks whether landowners and users can challenge an adverse “jurisdictional determination” in court or if, instead, they must await an enforcement action or permit decision. The outcome of the case has enormous practical consequences for landowners and other regulated entities and has attracted considerable attention from the business community.

Please join Michael Kimberly and Matt Waring of our Supreme Court & Appellate practice as they analyze key aspects of this important case, including:

  • The applicable provisions of the Clean Water Act and their importance to agricultural, industrial and commercial landowners
  • Background on the federal government’s administration of the Clean Water Act and the Supreme Court’s previous Clean Water Act decisions
  • The Hawkes case: the parties’ arguments, amicus arguments and how a decision for either party will affect landowners
  • Observations from the oral argument and an analysis of possible outcomes

CLE credit is pending.

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