Jurisdictional determinations under the Clean Water Act, revisited

Federal administrative agencies should comply with their own regulations.  Right?  It doesn’t always happen that way.

Yesterday, on behalf of our client, Gallagher & Henry, a second-generation, family – owned developer, we filed a lawsuit challenging a determination made by the United States Army Corps of Engineers that Gallagher & Henry’s property in Tinley Park, Illinois, is a jurisdictional wetland under the federal Clean Water Act. The complaint, filed in the United States District Court for the Northern District of Illinois, alleges that the property at issue is prior converted cropland, which is excluded from Clean Water Act jurisdiction by the Corps’ own regulations.  That regulatory exclusion is of keen interest to farmers and developers nationwide.

The federal government has consistently taken the position that jurisdictional determinations are not reviewable in court because they do not affect the legal relationship between property owners and the government.  The problem is that, once a jurisdictional determination is made, a property owner is forced to apply for a permit from the Corps, which could take years of effort at substantial cost, or forego developing the property, or simply proceed with the project without a permit, at the risk of substantial civil and criminal penalties.   PLF successfully litigated the reviewability issue in the Hawkes case, where the Eighth Circuit held that jurisdictional determinations are judicially reviewable.  But in another PLF case, the Fifth Circuit held in Kent that jurisdictional determinations are not reviewable.  In an effort to resolve the split between the circuits, PLF filed a petition for certiorari in the United States Supreme Court, seeking review of the Kent decision.  That petition is pending.

Undoubtedly, the government will argue here that the Corps’ jurisdictional determination is unreviewable.  But this case was filed in a federal district court in the Seventh Circuit, which is not bound by either Hawkes or Kent.  The reviewability of the Corps jurisdictional determination will be among the first battles in the case.

 

You’re in the Army now: don’t follow the rules

Under the Clean Water Act, the United States Army Corps of Engineers regulates wetlands throughout the nation.  Owners must obtain a permit from the Corps to develop, build upon, or otherwise alter their properties, if those properties contain “jurisdictional wetlands.”  The Corps’ rules specifically exclude from the permitting requirement properties that are separated from other wetlands by man-made barriers, such as roads or dikes.  The problem:  in an effort to expand its authority, the Corps is ignoring the regulatory exclusion.

Representing a small Alaska company, Universal Welding, PLF filed a lawsuit last week against the Corps for requiring the company to obtain a permit to expand operations on its property, which is separated from a jurisdictional wetland by a county-owned public road.  A clearer man-made barrier could not exist.  Accordingly, Universal Welding’s property in Fairbanks, Alaska, qualifies for the regulatory exclusion.

But the Corps says it is not bound by its own rules and can require Universal Welding to obtain a permit.  Does the Corps care that it is ignoring the rules?  No. It has drafted lawyers from the United States Department of Justice in Washington, D.C. to defend against PLF’s lawsuit, which is intended to enforce the rule of law against a bloated government bureaucracy seeking to impose its will in every corner of the nation under the guise of enforcing the Clean Water Act.  We will meet them in court.  Our motion for summary judgment can be found here:  MSJ – Universal Welding.

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