AUSTIN –The Texas Public Policy Foundation recently filed a brief in the 7th Circuit Court of Appeals to protect the property rights of the Gallagher and Henry Building Company (G&H). The case involves the scope of federal authority under the Clean Water Act.
 
In 1995 G&H began construction on a residential development in Tinley Park, Illinois. But when construction slowed, the altered drainage from construction caused cattails and other grasses to develop on part of the property. The federal government claimed that these new cattails were a “jurisdictional wetland” subject to federal regulation under the Clean Water Act. If G&H so much as moved dirt on the property it could be subject to fines as much as $75,000 a day. The construction has been mired in litigation ever since.
 
The primary issue in the case is how much evidence is necessary before the federal government can claim that private property is sufficiently connected to federal waters to establish federal control. G&H’s property is eleven miles from the nearest river and is surrounded on all four sides by other residential development.The federal government has never conducted any studies or collected any site-specific evidence that shows that moving dirt on G&H’s property has any impact on the river. Instead, the government points to a study from the Netherlands that shows that reducing foliage, in general, can have impacts on adjacent waters.
 
“This case is about due process and basic fairness,” said Chance Weldon an attorney for G&H and an attorney with the Center for the American Future at TPPF. “Gallagher and Henry played by the rules and got all their permits. If federal bureaucrats want to punish them for building homes on private property, it’s not too much to ask that the government produce some actual evidence that the construction will affect federal waters.”
 
“The federal government seems to think that the Clean Water Act grants unelected bureaucrats the authority to regulate almost every square inch of land in America,” said Robert Hennke, general counsel and director of the Center for the American Future at TPPF. “This case gives the 7th Circuit an opportunity to reaffirm that there are meaningful limits on the federal government’s ability to regulate private property.” 
 
“The Corps of Engineers is trying to expand its authority under the Clean Water Act beyond the limitations established by the United States Supreme Court,” said Ted Hadzi-Antich, senior attorney in the Center for the American Future at TPPF. “That is impermissible. TPPF filed this lawsuit on behalf of a small development company in Illinois to protect private property rights and to ensure that the Corps does not usurp jurisdiction over wetlands in violation of the rules laid down by the highest court in the land.”
 
For more information or to request an interview, please contact Alicia Pierce at apierce@texaspolicy.com or 512-472-2700.
 
Chance Weldon is an attorney with the Center for the American Future at the Texas Public Policy Foundation. 
 
The Honorable Robert Henneke is the general counsel and director of the Center for the American Future at the Texas Public Policy Foundation. 
 
Ted Hadzi-Antich is the senior attorney in the Center for the American Future at the Texas Public Policy Foundation.
 
The Texas Public Policy Foundation is a non-profit free-market research institute based in Austin. The Texas Public Policy Foundation aims to advance a societal framework that effectively fosters human flourishing based upon cooperation and mutually beneficial exchange of ideas and speech.

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