As construction industry groups await a Supreme Court ruling in a narrowly focused Clean Water Act case, they also are seeking clues as to how the justices may view a much more important matter that has not yet come before them—an expected frontal challenge to a wide-ranging U.S. Environmental Protection Agency-Army Corps of Engineers regulation governing federal jurisdiction over the “waters of the United States.”

Organizations such as the National Association of Home Builders and the American Road and Transportation Builders Association (ARTBA) and several states have filed or supported legal challenges to the broad “waters of the U.S.” rule, which, they contend, expands federal regulatory authority too much.

The definition of that phrase is important for construction companies because it specifies when a firm needs to obtain a Corps Clean Water Act permit to excavate or build in or near a particular stream, wetland or other body of water.

Environmental groups generally support the “waters of the U.S.” regulation, which became final last August. They say that it clarifies which waters need to be protected.

The eight current Supreme Court justices heard oral arguments on March 30 in the narrower case, U.S. Army Corps of Engineers v. Hawkes Co. It centers on the finality of Corps jurisdictional determinations, or JDs. Hawkes appealed to the Supreme Court after a federal appellate court in April 2015 ruled that JDs are not final and therefore cannot be challenged immediately in court.

Hawkes wanted to farm peat on a 530-acre tract in Minnesota. The Corps, however, determined that the company needed a federal permit to develop the parcel because it included wetlands. Hawkes contends that such determinations are final and binding and thus can be challenged in court.

Justice John Roberts


U.S. Deputy Solicitor General Malcolm Stewart told the high court that JDs are typical of many forms of advice that federal agencies give to various parties and so shouldn’t be considered legally binding. But the justices appeared skeptical about Stewart’s arguments. Chief Justice John Roberts and Justice Samuel Alito referred to an EPA-Corps memorandum that seemed to suggest that JDs are legally binding.

Nick Goldstein, ARTBA assistant general counsel, says a Supreme Court ruling in Hawkes’ favor would be a plus for contractors. However, he is more interested in getting “any signal from the court” about how it may rule in an expected challenge to the “waters of the U.S.” regulation.

Cases dealing with that more sweeping issue now are pending in federal district and appeals courts around the country, and many observers believe that at least one of those cases will end up before the Supreme Court.

Goldstein adds, “The tricky thing with the Hawkes case is, you have an incomplete court. So, we definitely want a ruling, rather than 4-4 deadlock.” A decision in that case is expected by July, when the high court’s term ends. If the court splits 4-4, the appeals court’s 2015 decision, which went against Hawkes, would stand in that appellate court’s region.