The Glynn Environmental Coalition, Inc., et al. v. Sea Island Acquisition, LLC

The Clean Water Act generally prohibits filling in wetlands that qualify as “waters of the United States.” See 33 U.S.C. § 1311(a). Landowners who want to confirm whether wetlands on their property fall within that definition may obtain an “approved jurisdictional determination” from the U.S. Army Corps of Engineers, which is subject to judicial review. 33 C.F.R. § 331.2; see U.S. Army Corps of Eng’rs v. Hawkes Co., 578 U.S. 590, 597-99 (2016). Landowners may also, however, forego that process and simply seek a permit from the Corps based on a “preliminary jurisdictional determination.” See 33 U.S.C. § 1344(a); 33 C.F.R. § 331.2. Those who do agree that “all wetlands and other water bodies on the site affected in any way by that activity are jurisdictional waters of the United States” and that accepting the permit “precludes any challenge to such jurisdiction . . . in any administrative or judicial compliance or enforcement action, or in any administrative appeal or in any Federal court.” Pet. App. 9a. The question presented is: Is a Clean Water Act permittee’s waiver of “any challenge” to the jurisdictional status of a wetland “in any Federal court” limited to government suits to enforce permit conditions, thereby allowing jurisdictional challenges in suits by states and private citizens under the Act’s citizen suit provision?