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Supreme Court Ruling Allows Clean Water Act Suit to Proceed, Offers Clues About Court’s Direction on Other Challenges to Federal Agency Advice

June 9, 2016, Covington Alert

The Supreme Court last week unanimously ruled that property owners seeking to discharge material onto land potentially subject to federal Clean Water Act restrictions may bring direct court challenges to "approved jurisdictional determinations" issued by the U.S. Army Corps of Engineers ("Corps"). The Court rejected the Corps' position that property owners must either complete the expensive and time-consuming permitting process or risk a federal civil or criminal enforcement action before challenging these determinations in federal court. Although the ruling was unanimous, the various opinions reveal discomfort among some Justices regarding the scope of the Clean Water Act as currently applied, as well as differences among the Justices regarding when an agency action becomes final for purposes of court review under the Administrative Procedure Act ("APA"). The opinions should be of interest not only to companies potentially subject to the Clean Water Act, but also those subject to other federal regulatory schemes in which agencies make determinations at various stages of a proceeding.

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