Argument preview: Diving into finality issues under the Clean Water Act

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Scotus: Argument preview: Diving into finality issues under the Clean Water Act

By Miriam Seifter on Mar 24, 2016 at 1:53 pm

The Clean Water Act restricts what can be done with certain waters. Among other things, it requires a permit from the United States Army Corps of Engineers to discharge dredged or fill material into “navigable waters,” which the act not so helpfully defines as “the waters of the United States.” Over the past three decades, a clear definition of that term has proven elusive. Neither courts nor the relevant federal agencies (the Environmental Protection Agency and the Corps) have come up with a bright line to differentiate waters the act covers (or “jurisdictional” waters) from those that are beyond the act’s reach. (The agencies’ latest attempt, the Clean Water Rule, postdates the events in this case.) The Supreme Court has held, in light of the act’s broad purposes of restoring and maintaining water quality, that jurisdictional waters extend beyond waters that are navigable in fact, but it has also held that the act does not cover an isolated gravel pit that forms a seasonal pond, or an isolated wetland. The precise contours remain murky. As a result, a person seeking to fill in a wetland may not know whether their property is subject to the act’s regulatory regime – a potentially burdensome permitting process, with steep penalties for violations – until the Corps has completed a site-specific evaluation.