NFIB

Legal Foundation Challenges Army Corps of Engineers in Newdunn Wetlands Case
10/09/2002

For the second time in as many months the NFIB Legal Foundation is challenging the Army Corps of Engineers for claiming jurisdiction over "wetlands" clearly beyond the limited mandate of the law. Today the Legal Foundation filed an amici curie brief before the U.S. Court of Appeals for the 4th Circuit in the case of U.S. v. Newdunn.

The case revolves around Newdunn Associates LLP, a firm building on a parcel in Norfolk, Virginia. At issue is whether Newdunn is required to file with the Corps for a wetlands permit to build on the land, a process that can take more than a year. Nine other business groups are also amici in the brief.

Under the Clean Water Act (CWA), the Corps has jurisdiction over wetlands adjacent to "waters of the United States." Acting on a flawed and over-generous interpretation of both CWA and the English language, the Corps claims that drainage ditches on the property are "waters of the United States." The Corps sued Newdunn Associates when they began building without the permit. The Corps lost in district court and has appealed the case.

"The Clean Water Act gives the Corps jurisdiction over navigable rivers that affect interstate commerce," said Karen Harned, executive director of the NFIB Legal Foundation. "The idea of interstate commerce in a ditch is laughable. The Corps would have their authority creep from rivers upstream through tributaries, up creeks, and finally into the ditches. This agency is simply trying to expand its jurisdiction by bureaucratic fiat."

Although Newdunn is a civil case, the Foundation is gravely concerned that it could set a precedent for criminal penalties similar to those in U.S. v. Rapanos, a case in which NFIB Legal Foundation is also an amicus. The CWA gives the Corps authority to pursue both civil and criminal remedies. If these cases give the Corps jurisdiction over land far from navigable waters, the result would be federal criminal liability on virtually all land everywhere in the United States.

"If the Corps is successful in bluffing its way into jurisdiction over land far from navigable rivers, it is America's small businesses that will be up a creek without a paddle. The Corps' wetlands permit process is infamous for its inefficiency. Setting a precedent that could lead to criminal penalties for activity so far upstream will leave legitimate land development stuck in a ditch," Harned concluded.

The NFIB Legal Foundation is a 501(c)(3) organization created to protect the rights of America's small-business owners by providing advisory material on legal issues and by ensuring that the voice of small business is heard in the nation's courts. The National Federation of Independent Business (NFIB) represents the consensus views of its 600,000 members in Washington and all 50 state capitals.

Contact: Michelle Dimarob, (202) 554-9000