From the office of the West Virginia Attorney General
CHARLESTON — West Virginia Attorney General Patrick Morrisey claimed victory in efforts to protect the rights of property owners against the federal government with a unanimous decision from the U.S. Supreme Court.
Attorney General Morrisey, in cooperation with Ohio Attorney General Mike DeWine, led 21 other states in arguing property owners are entitled to immediately challenge the U.S. Army Corp of Engineers in court anytime its officials label someone’s property as a protected wetland.
The bipartisan coalition’s friend-of-the-court brief contended without judicial review, property owners would be forced to abandon their plans or spend hundreds of thousands of dollars and many months to obtain a special wetlands permit.
“Today’s ruling marks an important victory for every West Virginian,” Attorney General Morrisey said. “It yet again prohibits the federal government from using regulation to exceed its authority.”
The Supreme Court’s ruling allows a Minnesota turf supplier to challenge the Corps of Engineers’ claim that its business – more than 120 river miles from the nearest navigable waterway – sits on federal wetland. The court previously rejected a similar move by the Environmental Protection Agency’s against the location of an Idaho couple’s home.
The coalition’s brief argued immediate review would serve as an important and timely check on federal authority. Otherwise, pressure will build upon landowners to unnecessarily comply and in effect expand federal authority without congressional action.
The ruling has added importance in light of the Waters of the United States Rule (WOTUS), a regulation that would unlawfully expand the federal reach over countless small bodies of water, including short-lived streams, roadside ditches and anywhere water may flow once every 100 years.
Attorney General Morrisey successfully worked with a broad coalition to stay WOTUS last year, and he believes the combined impact of these initiatives could devastate countless farmers, coal miners, homebuilders, contractors, retail establishments and public works projects.
Justice Anthony Kennedy, in a concurring opinion, wrote Tuesday’s ruling provides a limited check on the Clean Water Act’s “ominous reach.” He added the Clean Water Act “continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation” and that the “systemic consequences of the Clean Water Act remain a cause for concern,” concerns he described as potentially crushing.
Attorneys General Morrisey and DeWine were joined in their brief by Alabama, Arizona, Arkansas, Florida, Georgia, Indiana, Kansas, Kentucky, Michigan, Mississippi, Missouri, Montana, Nevada, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Utah, Wisconsin and Wyoming.
View a copy of the brief, filed as part of U.S. Army Corps of Engineers vs. Hawkes Co., Inc., et. al., at http://1.usa.gov/1SiLmQI.