A Court Victory for Small Business

The United States Court of Appeals for the 7th circuit has provided a significant victory against government overreach when a three-judge panel ruled on behalf of landowners. 

ST.EVE, Circuit Judge. This case concerns just shy of 13 acres of wetlands, which lie in a south‐suburban plot of land called the Warmke parcel. Orchard Hill Building Company purchased the Warmke parcel in 1995 with plans for a large‐scale residential development. Not wanting to run afoul of the Clean Water Act, Orchard Hill requested a determination Case: 17-3403 Document: 34 Filed: 06/27/2018 Pages: 17 2 No. 17‐3403 from the United States Army Corps of Engineers that the wet‐ lands (or the “Warmke wetlands”) were not jurisdictional “waters of the United States.” The Corps decided that they were, and Orchard Hill has spent the last 12 years challenging that decision. We find that the Corps has not provided sub‐ stantial evidence of a significant nexus to navigable‐in‐fact waters, and therefore vacate and remand with instructions that the Corps reconsider its determination.

What is particularly disturbing about this case is the fact that it took 12 years and many legal actions to arrive at this point in time. The amount of money that Orchard Hill has spent defending its right to develop its land is mind biggling. Keep in mind this property was 11 miles away from any navigatable water.