The EPA WOTUS Legal Toolkit

We hope no one ever has to defend themselves from EPA overreach, but in the case that you do, we are starting a legal toolkit of court cases you can refer to in times of trouble. Most of these cases had Pacific Legal Foundation involvement and more details can be found on their website.

Does a landowner have a direct right of appeal against “jurisdictional determinations”?

PLF recently won U.S. Army Corps of Engineers v. Hawkes, Co.

Are forest roads exempt from the Clean Water Act?

Decker v. Northwest Environmental Defense Center

What if geographical features separate my operation from navigable waters?

Great Northwest Inc. v. U.S. Army Corps of Engineers

Does a landowner have a direct right judicial review of EPA assertion of jurisdiction? 

Sackett v. Environmental Protection Agency

Can the EPA overrule existing statutes, historical practices, Supreme Court precedents and constitutional principles in redefining jurisdictional waters under the Clean Water Act?

Washington Cattlemen’s Association v. Environmental Protection Agency

This case is still open.

Does a landowner require a permit from the EPA to build an otherwise legal stock pond on their private land?

Settlement approved by a federal court: Johnson v. EPA

Andy Johnson v. Environmental Protection Agency

The Johnsons had all necessary state and local permits for the pond.  It was built in an environmentally beneficial way that created a wetlands habitat for fish and wildlife and cleaned the water that passed through it.  Despite this, the EPA ordered the pond removed on pain of $37,500/day in fines.

What is a navigable water?

Rapanos v. United States

Wetlands were 20 miles from nearest navigable water.

But my wetland is not a navigable water

Carabell v. United States Army Corps of Engineers

When your wetlands are isolated from navigable waters (“wetland does not have a surface water connection to adjacent properties for any body of water”) you do not need a Section 404 permit.

The Migratory Bird Rule is shot down in defining navigable waters – the original case

SWANCC v. Army Corps of Engineers

Briefly, it is not sufficient that the wetland provide migratory bird habitat for it to be declared a “navigable water” under the Clean Water Act and thus under federal jurisdiction.