expensive, and long.” Proceeding without a permit and waiting for an enforcement action reflected an even more problematic remedy according to the Court. This approach would compel the landowners to expose themselves to civil penalties of up to $37,500 for each day that a jurisdictional water body remained illegally filled, “to say nothing of potential criminal liability.” The Court stated bluntly that landowners “need not assume such risks while waiting for EPA to drop the hammer in order to have their day in court.” Moreover, the Court rejected the Corps’ argument that seeking review in an enforcement action or at the end of the permitting process would be the only avenues for review if the Corps had not adopted the practice of issuing standalone jurisdictional determinations, which is not required by the Clean Water Act. The Court responded: “True enough. But such a ‘count your blessings’ argument is not an adequate rejoinder to the assertion to the right of judicial review.” Three associate justices (Kennedy, Thomas and Alito) published a concurring opinion to express their concern over the fact that the reach of the Clean Water Act remains “notoriously unclear” and “continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.” Implications The Court’s decision obviously provides landowners and developers with an avenue to challenge an approved JD.

Such a challenge presumably would make it clear whether or not a permit is required, without having to go through a long permit process or risky enforcement proceeding. But it also is possible that the Corps will respond to the decision by ceasing or curtailing the longstanding practice of issuing approved jurisdictional determinations. If the Corps reacts in this way, landowners and developers would lose a valuable tool for learning relatively early on in the process what the Corps’ position is on its jurisdiction over a particular piece of property. Without this tool, landowners and developers would either have to submit a permit application to ascertain the Corps’ view on the matter or proceed with development while risking an enforcement proceeding —precisely the situation that the Corps warned about in arguing against judicial review.

Rather than make the process clearer, this approach could very well lead to increased uncertainty as to the scope of the Clean Water Act’s permitting requirements. It remains to be seen whether the Court’s ruling will help or hurt those who seek greater clarity on the key question of when the Clean Water Act applies and when it does not. © 2016 Perkins Coie LLP CONTACTS Donald Baur Marc R. Bruner Robert A. Maynard Paul B.

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