Sam Hess at Inside EPA reports that the Army Corps of Engineers isn’t going to begin issuing Jurisdictional Determinations until after the Environmental Protection Agency and the Corps publish yet another Waters of the United States regulation in response to the Supreme Court’s decision in Sackett v. EPA more than a month ago.
This means that those looking forward to taking advantage of the Supreme Court’s determination of the reach of the Clean Water Act could be waiting for months, not weeks, for the Corps of Engineers to get back into the business of issuing administrative determinations of the applicability of the Clean Water Act to projects that might, or might not, require a Corps of Engineers permit under section 404 of the Clean Water Act.
Why does this matter? Well, according to six members of the nation’s highest court in Sackett, “a staggering array of landowners are at risk of risk of criminal prosecution or onerous civil penalties” if they proceed with work ultimately determined to be governed by the Clean Water Act or its implementing regulations without the benefit of a Corps permit or jurisdictional determination. In fact, just this risk was the reason for the Sacketts’ first victory in the Supreme Court more than a decade ago.
The Corps of Engineers doesn’t explain why it can’t issue any jurisdictional determinations while it works with EPA on its most recent Waters of the United States rule which will most certainly be challenged in court by someone for some reason. Whether or not one agrees with what the Supreme Court has decided, its decision most certainly provides much more, if not nearly complete, clarity about what remains within Clean Water Act jurisdiction until Congress decides otherwise.
Another good question is why, if the Corps of Engineers believes it needs a final rule to get back into the jurisdictional determination business, it isn’t ready to issue one. The Assistant Secretary of the Army for Civil Works is reported by Inside EPA to have said the Corps and EPA are “already hard at work, and based on the significant work completed in January already, we are in a position to issue this final rule expeditiously” but why isn’t ready to issue it now? After all, the substance of the Supreme Court’s decision is pretty much exactly what most observers expected at the outset. Did the Corps and EPA really think the “significant nexus” test had a chance?
For now, those who would do things they believe are no longer regulated by the Clean Water Act have two choices — act without a permit or a jurisdictional determination based on the courage of that conviction or wait for the Corps to get back into the jurisdictional determination business whenever that may be.