N.W.Bernstein & Associates, LLC: Important Development for Buyers, Developers or Investors in U.S. Real Property

On May 31, 2016, the U.S. Supreme Court held that a U.S. Army Corps of Engineers Jurisdictional Determination (JD) as to whether wetlands are or are not “waters of the United States” is a “final agency action” immediately appealable in Court.  A property owner adversely affected need not wait to go through a long and expensive permitting process to get its day in Court.

In the case on appeal, the nearest river was 120 miles away but the Corps’ JD was that the land contributed water to the river and thus subjected the property owner to potential fines under the Clean Water Act of $37,500 per day or criminal penalties if it discharged anything onto its land without a Corps permit.  Permitting can take years and cost large sums.  A JD is also important because under a memorandum of agreement with the U.S. EPA, EPA is bound for five years by the JD.  Therefore a negative JD (property not part of the waters of the United States) should shield the developer in most cases from enforcement action by EPA under the Clean Water Act for five years.

If you would like a copy of the decision, US. Army Corps. V. Hawkes Co., Inc., please let us know.

Take Away – If you or anyone you know is going to buy, develop or invest in land in the U.S. containing bogs, marshes, mud flats, prairie potholes, wet meadows and the like, get an Army Corps JD as quickly as possible and if you don’t like the outcome, you can sue the Corps in federal court.

Copyright © 2016 by N.W. Bernstein & Associates, LLC.  This notice is for general information purposes only and does not provide legal advice or create an attorney/client relationship with any recipient.  It may be considered Attorney Advertising under New York ethical rules.  Prior results do not guarantee a similar outcome.