Emma Gallimore Jan. 21, 2016, 9:22am


WASHINGTON (Legal Newsline) - The U.S. Supreme Court will hear a lawsuit that is being pursued by the Pacific Legal Foundation and will affect citizens whose property is designated as wetland.

The lawsuit seeks to secure a right to judicial review for landowners when their property is labeled as wetlands subject. Currently, landowners have no way to challenge the classification of their land as wetland by the Environmental Protection Agency and the U.S. Army Corps of Engineers.

When an area is designated as a wetland, it becomes protected under the Clean Water Act. This gives the EPA veto power over any changes made to the property.

“This is the broadest interpretation of federal authority that we have ever seen,” PLF attorney Reed Hopper said.

PLF litigates for limited government, property rights, free enterprise and a balanced approach to environmental regulations. It is representing the plaintiffs in U.S. Army Corps of Engineers v. Hawkes Co., et al

The case comes in the wake of new regulations released in May. The Waters of the United States Rule revises regulations in place for more than 25 years that governed the scope of waters protected under the Clean Water Act.

The new rule was proposed in response to Supreme Court rulings that narrowed the CWA’s scope and created uncertainty about how the act should be applied.

However, the rule will increase the categorical assertion of CWA jurisdiction, because waters can be categorized as jurisdictional without case-specific evaluation.

Hopper said that only a few experts have a firm understanding of the CWA guidelines.

“When they do make a mistake, there ought to be an opportunity for the landowner to have his day in court,” Hopper said.

Classification of land as protected can have serious repercussions for landowners, he said.

“It’s not a benign designation,” Hopper said. “You can’t build a house. You can’t dig a ditch. You can’t fill in a ditch. You can’t modify the terrain.”

The landowner can’t put the land to use at all without federal approval. In practice, this means acquiring a permit.

The application process can take years and averages more than $270,000, PLF says. A landowner who chooses to develop the property without a permit risks fines of $37,000 per day and could go to jail. The only other option is to abandon the property.

“These are not legitimate options,” Hopper said in a statement

Hopper is confident the court will rule in PLF’s favor, because it won a similar case in 2012. That case, Sackett v. U.S. Environmental Protection Agency, involved a couple who wanted to build a home on a half-acre lot in Idaho.

The agency had declared that it was part of a wetland, but the PLF challenged the classification and won.

“Again we’re back in court asking whether the land owner has a right to challenge jurisdiction once the final determination has been made,” Hopper said.

Organizations in this Story

U.S. Environmental Protection Agency (EPA)
1200 Pennsylvania Ave NW
Washington, DC 20460

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