A critical part of the permitting process for many development projects is obtaining federal and state wetland permits. The key wetland authorization is usually a Section 404 permit from the U.S. Army Corps of Engineers, which is a required Clean Water Act permit for any discharge of dredged or fill material into jurisdictional waters and wetlands of the United States. This authorization is based on an Approved Jurisdictional Determination that specifies the nature, location and extent of the jurisdictional areas on the development site. After a conflict recently emerged in the federal circuit courts, the U.S. Supreme Court agreed on December 11, 2015 to decide whether an applicant for a Corps 404 permit can immediately challenge in court a Corps JD without first trying to obtain a permit based on an unacceptable delineation or proceeding without a permit (thereby inviting an enforcement action). [Read full article]
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