U.S. Sen. David Vitter (R-La.), top Republican on the Environment and Public Works Committee, made the following statement regarding an amicus curiae brief he filed in support of a petition to bring the case of Kent Recycling Services, LLC v. U.S. Corps of Engineers before the Supreme Court. Kent Recycling, a Louisiana company, is being forced to pay up to $300,000 for a permit to build on private property in Assumption Parish.
"The Obama administration is slowly destroying private property rights and hurting landowners in Louisiana and across the United States. And they aren't just nickel-and-diming folks, we're talking huge fees and fines which could bankrupt some people or businesses. That's why it is crucial to keep fighting this disturbing pro-government control outcome," said Vitter. "As EPA and the Army Corps look to unjustly expand their authority through the proposed ‘Waters of the U.S.' rule, we need to protect the rights of private property owners."
In 2011, the Army Corps of Engineers (Corps) issued a Jurisdictional Determination (JD) that required a Louisiana landowner to obtain a Clean Water Act (CWA) permit in order to build on private property. The Corps justified the JD due to jurisdiction from the CWA. Because obtaining a CWA permit costs on average nearly $300,000 and takes nearly two years to obtain, the landowner sued the Corps over whether the agency had jurisdiction to begin with and whether the permit is necessary.
Earlier this year, the Fifth Circuit Court of Appeals ruled in favor of the Corps, stating that JDs are not subject to judicial review. This means that, in the Fifth Circuit, small businesses and landowners who receive JDs may not challenge the Corps immediately in court, even if the Agency claims that dry land on private property actually contains wetlands subject to federal jurisdiction. Under the Fifth Circuit's decision, landowners who wish to challenge the Corps' claim of federal jurisdiction must wait until completion of the CWA permitting process, a costly ordeal which, in many instances, will effectively prevent landowners from making productive use of their own property. Click here to read more.
Various stakeholder groups have filed supportive amicus briefs, as well. Click here to read more.
As the Corps and the U.S. Environmental Protection Agency (EPA) seek to increase their power through the controversial "waters of the United States" (WOTUS) proposed rule, the Fifth Circuit's decision means less accountability for the bureaucrats who will be in charge of implementing the proposed rule.
Click here to read Sen. Vitter's amicus brief.
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