On Friday, the Court agreed to hear Army Corps of Engineers v. Hawkes, which concerns whether a “jurisdictional determination” (J.D.) made under the Clean Water Act is a “final agency action” under the Administrative Procedure Act. If the answer is yes, then landowners could dispute J.D.s in court without first seeking a permit that the landowner does not think he or she needs.
The National Association of Home Builders was the only amicus that requested the Court to accept this case.
Builders and developers often obtain J.D.s that explain which parts of their property are wetlands or jurisdictional waters. Of course, any area that is jurisdictional requires a Corps’ permit before a property owner may develop it.
The problem has always been that property owners could not dispute in court whether a specific area is jurisdictional. The Corps and courts always required them to endure the entire permit process before they could go to court.
That, in turn, means that the property owner could spend hundreds of thousands of dollars to get a permit that may not have been necessary.
Your Home Builders Association has been fighting this issue for at least 20 years.