December 2, 2014

Clean Water Act petition gets boost

By M. Reed Hopper Senior Attorney

In October, PLF filed a petition for review in the U.S. Supreme Court in an important Clean Water Act case on behalf of Kent Recycling.  Kent is seeking to challenge a wetland delineation, called a Jurisdictional Determination, on private property that requires the landowner to obtain a $300,000 permit to determine whether a permit is required.  You read that right.  That is not a typo.  The Fifth Circuit Court of Appeals said Kent cannot challenge the jurisdiction of the Corps of Engineers until it goes through a lengthy and expensive permit process.  Only then can it sue the Corps to determine if the agency had jurisdiction in the first place and whether a permit is required to pursue Kent’s land use project.  If Kent ultimately wins in court, it cannot recover the money it spent to obtain the permit that was never required.  Confused?  Join the club.  The permit requirement makes no sense.  It is wasteful, purposeless and discriminatory against those who cannot afford the exorbitant cost to seek redress against the government in a court of law.

Fortunately, our case got a serious boost from like-minded folks who filed excellent amicus briefs in support of our petition, including Senator David Vitter from Louisiana, American Farm Bureau Federation, American Petroleum Institute, National Association of Home Builders, National Mining Association, and Utility Water Act Group, as well as Center for Constitutional Jurisprudence, National Federation of Independent Business Small Business Legal Center and Ernest and Lauren Park.  This broad coalition of supporters underscores the importance of the case.  Now that the Corps asserts it can regulate virtually any water in the country, every American has a stake in the case.  When government overreaches and seeks to regulate ordinary activity, ordinary citizens should have a right to challenge the government regulation in court.  Thanks to these supporting briefs, we have a greater chance of having the Supreme Court address this important issue.

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