PLF petitions Supreme Court to protect landowners from Clean Water Act abuse

October 29, 2014 | By REED HOPPER

Kent Recycling Services wants to establish a solid waste landfill in Louisiana. But Kent has been stymied in this effort by an overzealous Corps of Engineers that claims the subject property contains regulated wetlands.  Kent disputes this claim and is seeking judicial review.  Unfortunately, the Fifth Circuit Court of Appeals refuses to give Kent its day in court.

Under the Clean Water Act, the Army Corps of Engineers asserts regulatory authority over almost all waters (and much land) in the United States, including tributaries, ditches, ponds, ephemeral streams, drains, wetlands, riparian areas and “other waters.”  On more than one occasion, the Supreme Court has chastised the federal government for overreaching and abusing its power under the Act.  For example, in SWANCC, in 2001, the court held the regulation of remote ponds exceeds statutory authority and raises constitutional questions.  Then again, in PLF’s Rapanos case, in 2006, the court held the agency’s expansive interpretation of the Clean Water Act is over broad and creates federalism problems..  More recently, in PLF’s Sackett case, Justice Alito commented that the “reach of the Clean Water Act is notoriously unclear” and that “any piece of land that is wet at least part of the year” may be covered by the Act, “putting property owners at the agency’s mercy.”  It is imperative, therefore, that the courts safeguard a landowner’s right to challenge the government’s erroneous application of the law to his property.  But that safeguard failed in this case, establishing a dangerous precedent.
Federal regulations allow the Corp of Engineers to issue a site-specific Jurisdictional Determination delineating “waters of the United States” on private land subject to federal regulation. A Jurisdictional Determination is conclusive and  effectively prohibits the land owner from using the regulated portion of his land without a federal permit.  According to the Fifth Circuit Court of Appeals, a landowner is not entitled to immediate judicial review of a Jurisdictional Determination, even if the determination is wrong as Kent contends in this case.  Instead, the landowner has three options: (1) abandon his use of the land; (2) go through the pointless and costly permit process (averaging more than $270,000 and over 2 years); or (3), proceed without a permit, risking immense fines of $37,500 a day and imprisonment.  These are not legitimate options.  They are punitive sanctions imposed on landowners who dare to challenge federal jurisdiction under the Clean Water Act.

The Fifth Circuit decision conflicts with Supreme Court case law, including the court’s recent landmark decision in Sackett wherein the court overturned decades of uniform case law prohibiting judicial review of compliance orders issued under the Clean Water Act.  The Supreme Court held unanimously that a determination of federal jurisdiction, issued through a compliance order, is subject to immediate review in federal court.  But the federal courts aren’t listening.  Therefore, PLF attorneys filed a petition for review in the U.S. Supreme Court in the case of Kent Recycling Services v. Army Corps of Engineers.  That case raises questions of statutory and constitutional law of importance to tens of thousands, if not all, landowners in the Country.

The property which Kent intends to use has been exempt from the Clean Water Act for decades as agricultural land.  Kent received all local permits for the waste disposal site, but suddenly the Corps of Engineers issued a Jurisdictional Determination withdrawing the exemption and asserting the site contains wetlands subject to federal regulation.  Kent maintains the withdrawal of the exemption violated the agency’s own rules and that the Corps failed to provide sufficient evidence of covered wetlands on the property.  To add insult to injury, when Kent appealed the Jurisdictional Determination to the Corps itself, a hearing officer agreed that the determination was deficient and erroneous, but the Corps issued a final Jurisdictional Determination without correcting these deficiencies.  Kent’s petition to the Supreme Court seeks immediate review of the Jurisdictional Determination and argues the agency’s issuance of an admittedly erroneous Jurisdictional Determination deprived Kent of its due process rights.