The U.S. Supreme Court ruled Dec. 4 against the federal government in a property “takings” case involving water releases from an Army Corps of Engineers Dam. The court also heard oral arguments in two Clean Water Act cases on Dec. 3 and 4.
Although none of the cases touched on the broader question of federal versus state jurisdiction in issuing permits, construction groups are keeping a watchful eye on all three.
Nick Goldstein, American Road & Transportation Builders Association vice president of environmental and regulatory affairs and assistant general counsel, says, “The agencies keep trying to expand jurisdiction, so if there is anything in [the court’s] rulings that stops that, that’s good for construction.”
In its Dec. 4 ruling, the court held that federally directed flooding, even if temporary, can be considered a government “taking” of private property under the Fifth Amendment, and thus damage caused by the flooding could warrant compensation. The 8-0 opinion in Arkansas Game and Fish Commission v. U.S is a defeat for the federal government, which had argued that water releases from a Corps of Engineers dam were temporary and did not constitute a taking.