ELR Citation: 45 ELR 20197
No(s). 2:14-cv-16744 (S.D. W. Va. Sep 30, 2015) (Copenhaver Jr., J.)

A district court denied in part and granted in part EPA's motion to dismiss property owners' lawsuit challenging the constitutionality of an EPA compliance order under CWA §309. EPA determined that, in the course of developing the property, the owners discharged dredge and fill materials into waters of the United States without the necessary permit. The Agency issued a compliance order requiring the owners to restore the site to their pre-disturbed condition, and the owners filed suit, arguing that the compliance order violated their procedural due process rights. EPA filed a motion to dismiss, but the court denied the motion. The owners demonstrated a substantial property interest of which they have been deprived by the government’s issuance of the compliance order. In addition, judicial review under the APA, standing alone, does not provide a process sufficient to satisfy the owners' procedural due process rights. The court, however, granted EPA's motion to dismiss the owners' substantive due process claim. The complaint contains no allegations of egregious conduct that give rise to a substantive due process violation. Likewise, the owners' equal protection claims were without merit. The fact that EPA pursued regulatory action under the CWA against the prior owners, who are about as “similarly situated” as one could be to the current owners, demonstrates that the owners have not been singled out in the fashion necessary for a “class of one” claim.