Monday, March 9, 2015

Wetland Designation Case

Supreme Court weighs review of Army Corps’ jurisdiction decisions, Posted on March 9, 2015 Written by eenews.net
The Supreme Court may decide as soon as Mon­day to review a high-profile case on whether an Army Corps of Engi­neers deter­mi­na­tion that prop­erty qual­i­fies for Clean Water Act pro­tec­tions can be chal­lenged in court.
In Kent Recy­cling Ser­vices LLC v. Army Corps of Engi­neers, the jus­tices are pre­sented with the ques­tion of whether a corps “juris­dic­tional deter­mi­na­tion” for a wet­land qual­i­fies for judi­cial review.
Busi­ness and farm groups, prop­erty right activists, and Louisiana Sen. David Vit­ter — who was for­merly the top Repub­li­can on the Sen­ate Envi­ron­ment and Pub­lic Works Com­mit­tee — have all urged the court to take up the case.
They con­tend that a corps deci­sion that prop­erty is juris­dic­tional, and there­fore qual­i­fies for Clean Water Act pro­tec­tions, places sig­nif­i­cant bur­dens on its owner — includ­ing hav­ing to apply for costly per­mits or being sub­jected to penal­ties to the tune of thou­sands of dol­lars per day. “These are not legit­i­mate options,” the peti­tioner, Kent Recy­cling, said in court documents.
The case presents the high court the oppor­tu­nity to go one step fur­ther than it did in a 2012 Supreme Court Clean Water Act case, Sack­ett v. U.S. EPA. Then, the jus­tices unan­i­mously ruled that an EPA com­pli­ance order is a final agency action that can be chal­lenged in court.
If the court does review the case, it could have sig­nif­i­cant impli­ca­tions for the Obama administration’s pro­posed Waters of the United States juris­dic­tional rule, which is set to be final­ized this year.
Kent Recy­cling con­cerns a tract of south­ern Louisiana land and dates back to 1991 when its owner, Belle Co. LLC, tried to sell the prop­erty to Kent Recy­cling for use as a landfill.
At the time, the corps told Belle that the land qual­i­fied as a “prior-converted crop­land” and wasn’t sub­ject to Clean Water Act juris­dic­tion. EPA later con­firmed that policy.
In 2003, how­ever, the corps reversed itself, say­ing its pre­vi­ous cor­re­spon­dence wasn’t valid. Two years later, it put new reg­u­la­tions on the books that said prior-converted wet­lands would be exempt from Clean Water Act pro­tec­tions only if they were still being used for agriculture.
The Belle prop­erty wasn’t, and in 2011 the corps issued a final deter­mi­na­tion that the prop­erty qual­i­fied as juris­dic­tional and there­fore the com­pany would have to apply for a permit.
Both com­pa­nies chal­lenged the juris­dic­tional deter­mi­na­tion, or JD, in court. The 5th U.S. Cir­cuit Court of Appeals, how­ever, sided with the corps last July and drew a sig­nif­i­cant dis­tinc­tion between a JD and EPA com­pli­ance orders that were at issue in Sack­ett.
“By con­trast, the JD is a noti­fi­ca­tion of the property’s clas­si­fi­ca­tions as wet­lands but does not oblige Belle to do or refrain from doing any­thing to its prop­erty,” wrote Judge Stephen Hig­gin­son, who was appointed by Pres­i­dent Obama.
Fur­ther, the com­pli­ance order made the Sack­etts sub­ject to future enforce­ment pro­ceed­ings, includ­ing fines.
“The JD erects no penalty scheme,” Hig­gin­son said. “It imposes no penal­ties on Belle. And nei­ther the JD nor Corps reg­u­la­tions nor the [Clean Water Act] require Belle to com­ply with the JD.” There­fore, he con­cluded, a JD is not a final agency action that is eli­gi­ble for court review under the Admin­is­tra­tive Pro­ce­dure Act (Green­wire, July 31, 2014).
The case is slated to be con­sid­ered at the jus­tices’ pri­vate con­fer­ence tomor­row. It takes the votes of four jus­tices to grant a case, and at this point in the court’s term an order on whether it has taken up or denied review is likely to come Mon­day, or the jus­tices may hold the peti­tion for future consideration.
‘Incred­i­bly sig­nif­i­cant’ consequences
Sev­eral Clean Water Act lawyers who typ­i­cally rep­re­sent prop­erty own­ers and indus­try inter­ests hope the jus­tices will take up the case.
They note, as Kent Recy­cling did, that a juris­dic­tional deter­mi­na­tion can force a prop­erty owner to either aban­don a project, go through a per­mit process that typ­i­cally takes two years and costs up to $270,000, or pro­ceed with­out a per­mit and risk fines of up to $37,500 per day.
“It imposes a lot of hard­ship on the peo­ple try­ing to develop land because if they go ahead, they do so at their own peril,” said Richard Schwartz, a Clean Water Act lawyer at Crow­ell & Mor­ing. “The con­se­quences are incred­i­bly sig­nif­i­cant, and there should be judi­cial review.”
Tim Bishop of Mayer Brown in Chicago, who has argued water cases before the Supreme Court, was more emphatic. Under the Clean Water Act, he said, “a des­ig­na­tion imme­di­ately affects how you can use your prop­erty and its value. It is truly absurd to hold that a des­ig­na­tion has no legal consequences.”
Vit­ter, the Amer­i­can Farm Bureau and the National Fed­er­a­tion of Inde­pen­dent Busi­ness have also asked the Supreme Court to review the case.
The corps makes sev­eral coun­ter­ar­gu­ments. Pro­ce­du­rally, it notes that Kent Recy­cling is not the actual owner of the prop­erty — Belle is. Kent Recy­cling had an option to buy the land if it can be used as a solid-waste landfill.
Belle, the corps notes in court doc­u­ments, has stopped pur­su­ing the case after the 5th Cir­cuit rul­ing. Kent Recy­cling, under the government’s rea­son­ing, there­fore lacks stand­ing and can’t prove it is directly harmed by the JD.
Fur­ther, the corps said Belle has since pro­posed to use the prop­erty as part of a mit­i­ga­tion bank — that is, to pre­serve it as wet­lands to com­pen­sate for impacts on other water bodies. “Belle’s action raises ques­tions about the con­tin­ued exis­tence of the petitioner’s option to pur­chase the prop­erty and the extent of its con­tin­u­ing inter­est in the prop­erty,” the Jus­tice Depart­ment wrote in a court brief. “In addi­tion, if Belle suc­ceeds in trans­form­ing the prop­erty into a mit­i­ga­tion bank, it is unlikely that this case would remain live.”
The gov­ern­ment also sup­ported the 5th Circuit’s con­clu­sions regard­ing the dif­fer­ence between a JD and the com­pli­ance orders from Sack­ett. And it pointed out that the 9th U.S. Cir­cuit Court of Appeals reached the same conclusion.
Pat Par­enteau, an envi­ron­men­tal law pro­fes­sor at Ver­mont Law School, agreed with that assess­ment and didn’t think the court would bite on review­ing the case. “I don’t think it’s any­thing like Sack­ett,” he said. “There is no sanc­tion here at all.”
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