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The Pacific Legal Foundation filed an appeal in Kent Recycling Services v. Army Corps of Engineers on October 29, seeking U.S. Supreme Court review of a decision by the Fifth Circuit Court of Appeals, which denied a landowner the right to seek judicial review of federal regulators’ decision to designate his land as wetlands.

This appeal comes two years after the PLF’s Supreme Court victory in the case of Sackett v. U.S. Environmental Protection Agency, where the Supreme Court determined that landowners may seek judicial review of “compliance orders” concerning federal wetlands issued by Clean Water Act regulators. Read more: Historic Supreme Court ruling allows Idaho couple to take EPA to court.

Gunster‘s environmental and land use law practice team are monitoring the current appeal for its potential effect on landowners’ ability to appeal designations made by Clean Water Act regulators. Feel free to contact any member of our team with questions about the matter.

The current case

In Kent, Clean Water Act regulators designated Kent’s land as “waters of the United States,” thwarting Kent’s efforts to use the property as a solid waste landfill (after successfully obtaining all necessary local permits to do so). The land had been exempt from the Act for decades due to is agricultural designation.

Kent sought judicial review of the regulators’ decision, but the Fifth Circuit Court of Appeals determined that Kent had no right to challenge the wetlands designation in a court of law, even though it had the effect of bringing the property under the direct regulatory control of the federal government,

In support of its appeal, the PLF asserts that the Administrative Procedure Act clearly provides landowners the right to seek judicial review of decisions by federal regulators that assert jurisdiction over their property. Also, the PLF argues, formal designations of property as wetlands by Clean Water Act regulators should be subject to judicial review, in harmony with the Supreme Court’s 2012 decision in Sackett.

As Supreme Court Justice Samuel Alito has noted in the past, the Clean Water Act’s scope is vague and unclear, potentially covering any land that is wet at least part of the year. Thus, decisions like the one in Sackett, and the appeal set forth by the PLF in Kent (if successful), are important in that they provide a check on the Act’s reach, and provide landowners a means to challenge illegal and erroneous decisions by Act regulators.

If federal regulators are given unbridled discretion to be their own judge and jury, landowners will be saddled with minimal potential positive outcomes following receipt of an unfavorable land designation. Without the ability to appeal an erroneous designation to the judiciary, landowners are left with the unfavorable options of abandoning the intended use of the land, undertaking a costly permitting process, or proceeding with development while risking incurring fines as great as $37,500 a day.

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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.

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