Heinrich v. United States

Another post-Rapanos case from the Seventh Circuit. Mr. Heinrich wished to build a grass road on his forested-wetlands property but did not have a 404 permit. The government brought a civil enforcement action against him; the district court entered a $75,000 civil fine, which the Seventh Circuit affirmed. Mr. Heinrich contended that he did not need a 404 permit because his activity, which the Seventh Circuit noted would have only a minimal environmental impact on the surrounding area, qualified for Nationwide Permit (NWP) 26. Under NWP 26, a landowner need not go through the burdensome 404 permitting process if his project is small enough. The government contested the applicability of NWP 26, and the Seventh Circuit held that, due to some procedural difficulties with the State of Wisconsin's approval of NWP26, that NWP 26 was not available to Mr. Heinrich. Now, Mr. Heinrich has petitioned the Supreme Court, and PLF has filed an amicus brief in support of that petition, arguing that, under the jurisdictional test announced in Rapanos, the Corps does not have regulatory authority over Mr. Heinrich's isolated wetland.