Important New Development in First Federal Wetlands Case to be Decided in Virginia After Sackett

Important New Development in First Federal Wetlands Case to be Decided in Virginia After Sackett

As explained in my previous article in this blog, the U.S. Supreme Court’s 2023 decision in Sackett v. EPA forces the federal government to stop regulating isolated wetlands.  This is a big change to the way that the federal regulatory agencies do business because this type of wetlands had been subject to the federal Clean Water Act for decades.  The result, though, was not entirely surprising because this current Supreme Court has demonstrated an appetite for restricting federal agency regulatory authority.  This seems especially true when it comes to the regulatory authority of the federal environmental agencies.  In our law practice we are helping current clients on wetlands cases where the U.S. Army Corps of Engineers appears reluctant to accept the new limits that Sackett imposed on its authority to regulate wetlands.  We are also monitoring a case in the federal court in Richmond where, for the first time in Virginia, the parties are fighting to define how the guard rails imposed by Sackett will be applied to the EPA’s and the U.S. Army Corps’ authority to regulate wetlands.  That case is U.S. v. Chameleon LLC and Layne, 3:23-cv-00763 (U.S. District Court, Eastern District of Virginia, 2023).  There has been a significant new development in that case.  This article will share this new information with you.

Shutterstock: Vitalli

Factual Background of U.S. v. Chameleon LLC and Layne

My previous article in this blog recounts how Mr. Layne, the owner of a 102-acre forested, undeveloped, parcel in Ashland, Virginia, attracted attention from Virginia DEQ, the U.S. Army Corps of Engineers, and the EPA when, beginning in 2019, and continuing for the next two years, he used bulldozers and other earthmoving equipment to clear and grub 21 acres of wetlands without first having obtained a permit to do so.  In 2023 the United States filed a civil action against the owner.  The government asks the Court to order Mr. Layne to restore the wetlands, pay a civil penalty, and reimburse the United States for the legal fees incurred in prosecuting the suit. 

The property owner, relying on the Sackett decision, filed a motion to dismiss the case.  The motion was argued in April 2024.  The complaint that the EPA filed with the Court to initiate the litigation, and the parties’ legal briefs on the Motion to Dismiss, are linked into my prior article.  The Court recently issued its decision.

The Court Grants Mr. Layne’s Motion to Dismiss the EPA’s Case

A successful Motion to Dismiss eliminates the Complaint in the early stage of the case without reaching “the merits”.  This is so because the Motion to Dismiss attacks the Complaint for its failure to be properly drafted.  Recall, as was more fully set out in my prior article, that the Chickahominy River is located four miles from Mr. Layne’s property and the Pamunkey River is seven miles away.  The new framework in Sackett recognizes federal authority to regulate wetlands right next to “traditional interstate navigable waters” like the Chickahominy and Pamunkey Rivers.  Sackett, though, makes it increasingly difficult to regulate wetlands as the distance grows between the wetland and “traditional interstate navigable waters”.  This is so because Sackett demands that the wetland must have “a continuous surface connection” with, in this case, either the Chickahominy or Pamunkey River.  Mr. Layne argued, and the Court agreed, that the EPA’s complaint was defective because it asserted that the “continuous surface connection” was present without including in the Complaint the facts needed to support the assertion.  A copy of the Court’s opinion is available here.

The Next Step

Shutterstock: Gorodenkoff

The Court granted EPA the opportunity to revise and resubmit its Complaint.  The Court also imposed a deadline of November 15, 2024 to do so.  In the unlikely event that the EPA does not refile an updated version of the Complaint the case will be over with the result that Mr. Layne will receive no federally-imposed consequence following his destruction of 21 acres of forested wetlands.  This of course does not preclude the Virginia DEQ from prosecuting Mr. Layne using the State Water Control Law.  More likely, the EPA will redraft its Complaint and refile it in advance of the November 15 deadline.  At that point we will see how Mr. Layne responds.  Stay tuned for new updates!

Conclusion   

The attorneys on our Waterfront Property Law Team have strong connections and significant legal experience.  As you can tell from the time a few years ago when one of our attorneys stripped off his shoes and got in the water to fend off a criminal enforcement action being filed against our client, we go the extra mile for our clients, if that is what is needed to get the job done.    

Contact Jim Lang if you would like to see him publish more articles on wetlands law.  Of course, you can always contact Jim for his advice and assistance in connection with needs specific to your particular situation.