February 12, 2015

Will the Supreme Court hear important Clean Water Act case?

By M. Reed Hopper Senior Attorney

PLF’s petition to the U.S.Supreme Court in Kent Recycling Services v. Corps (14-493) will be up for review as soon as February 18.

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 PLF’s 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.  The Kent case raises similar questions of importance to landowners throughout the Country.  We recently filed our reply to the government response.  In a week or two, the High Court will decide whether to take the case.  Stay tuned!

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