WOTUS comes to Louisiana, and it’s coming soon to you

Did the Fifth Circuit sack "Sackett" in denying the landowner a day in court?

epaxxxThe Environmental Protection Agency (EPA) may have extended the public comment period beyond the midterm election for its proposed “Waters of the United States” (WOTUS) regulations.  But a small Louisiana company is already getting a foretaste of what’s in store for the rest of the country if the EPA and the U.S. Army Corps of Engineers (Corps) get their way.

Kent Recycling Services wants to create a solid-waste landfill in Louisiana.  But Kent’s plans have been thwarted by the Corps, which claims that the property where the landfill would be placed contains a regulated wetland.  Under the Clean Water Act (CWA), over which the Corps and EPA share jurisdiction, the federal government asserts regulatory authority over almost all waters (and much land) in the U.S., including tributaries, ditches, ponds, ephemeral streams, dams, wetlands, riparian areas, and “other waters.”  The property which Kent intends to use has been exempt from the CWA for decades because it was deemed agricultural land.

The Power of a Judicial Determination

The company received all local permits for the waste-disposal site, only to be blocked by the Corps — which issued a Jurisdictional Determination.   Under the law, the Corps is allowed to issue a Jurisdictional Determination delineating “waters of the United States” on private land, thereby asserting federal regulatory jurisdiction.  A Jurisdictional Determination is conclusive and effectively prohibits landowners from using the regulated part of their property without a federal permit.

Convinced that the Corps had overstepped its regulatory authority, Kent sought judicial review of the agency’s decision, but the Fifth Circuit Court of Appeals refused to 5hear the case.  Denied its day in court, Kent is now at the mercy of Washington regulators, who have no qualms about twisting the slippery language of the CWA to suit their purposes.  The Pacific Legal Foundation (PLF) has stepped in and filed a petition of review in the U.S. Supreme Court in the case of Case Recycling Services v. Army Corps of Engineers.

The PLF points out that the Fifth Circuit decision conflicts with Supreme Court case law, including the court’s recent Sackett decision, wherein the court overturned decades of uniform case law prohibiting judicial review of compliance orders issued under the CWA.  “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 PLF said in a statement.

“Significant Private Property Grab”

Senator David Vitter (R-Louisiana), ranking member on the Senate Environment and Public Works Committee, expressed outrage over the actions of the Corps and the Fifth Circuit. “The ‘waters of the U.S.’ rule may be one of the most significant private property grabs in U.S. history, and it needs to be withdrawn,” he said.  “The recent Court of Appeals decision increases my concerns about abuse of the Clean Water Act, and it should terrify landowners.  When a small business has played by the rules only to find overzealous bureaucrats going after it – claiming they can designate private property as wetlands at any vitterjuncture and preventing the small business from having recourse, this needs to be challenged.”

EPA’s WOTUS rule isn’t scheduled to go into effect until the end of 2015 – at the earliest.  Yet the Corps is already testing the limits of the power it does not yet have.   If WOTUS is allowed to stand, then control of private land will pass irreversibly from the landowner to the federal bureaucrat.

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About the Author: Bonner Cohen, Ph. D.

Bonner Cohen, Ph. D.

Bonner R. Cohen, Ph. D., is a senior policy analyst with CFACT.