Army Corps is sued for illegally halting homebuilding project


WASHINGTON, D.C. – July 24, 2015 – (RealEstateRama) — Tinley Park, IL; July 23, 2015: Federal Clean Water Act (CWA) officials have illegally halted the ongoing development of a 100-acre residential project in Tinley Park, by wrongly asserting authority over the property — as federally controlled “wetlands” — in violation of their own regulations that exempt the land from CWA coverage because it was previously farmland.

So argues a lawsuit filed by Pacific Legal Foundation (PLF), a national watchdog organization for property rights and balanced environmental regulations. Donor-supported PLF represents the property’s owner, the Gallagher & Henry development company, free of charge, as with all PLF clients. Gallagher & Henry is a second generation Chicago area family-owned home builder which recognizes and fulfills wetlands regulations appropriately deemed jurisdictional but has been challenging the Corps’ claim of jurisdiction in this particular matter since January of 2007.

In claiming that it has regulatory power over the Gallagher & Henry property, the U.S. Army Corps of Engineers is violating the “prior converted cropland” rule that exempts property from CWA coverage if it was devoted to agricultural use as of December 1985. This exemption continues to apply even if the property is subsequently put to a non-agricultural use, such as the residential development that has been underway on the Gallagher & Henry site since 1996.

The only way that the “prior converted cropland” exemption is lost is if use of the property is “abandoned” for at least five years. As PLF’s lawsuit points out, the use of the Gallagher & Henry property has never been abandoned. It was fully devoted to agricultural use up until 1996; then, the residential project began, under a comprehensive plan to develop the entire property in stages.

Corps contorts a regulation, to impose Clean Water Act on property that is properly exempt
The Corps has denied the “prior converted cropland” exemption to the Gallagher & Henry property by employing a distorted, and legally impermissible, interpretation of “abandonment.” In essence, the regulators have declared that Gallagher & Henry “abandoned” the bulk of their 100 acres because the plan called for staged development of the site, instead of immediate homebuilding throughout the property.

“The Corps is contorting its own regulations, to claim power over property that clearly isn’t supposed to be covered by the Clean Water Act,” said PLF Senior Staff Attorney Theodore Hadzi-Antich. “This narrow, contorted reading of the prior converted cropland exception threatens to expand federal control to many properties that are supposed to be exempt. Essentially, the regulators are saying that a property is ‘abandoned’ if there is a change in use that is introduced in stages. But it is often the case that staged development is the only practical way to introduce a new use of agricultural property.

“In short, the regulators have punched a broad loophole through the prior converted cropland rule. This kind of bureaucratic power play is not legally permissible. Unelected regulators cannot unilaterally rescind or redefine the regulations that govern the scope of their authority. Our lawsuit isn’t just about the property rights of Gallagher & Henry; ultimately it is about whether Clean Water Act bureaucrats are going to be accountable to the law and to recognized regulatory and administrative processes.”

Filed in the U.S. District Court for the Northern District of Illinois, Eastern Division, the case is Orchard Hill Building Company DBA Gallagher & Henry v. United States Army Corps of Engineers, et. al. More information, including the complaint, is available at:

About Pacific Legal Foundation
Donor-supported PLF is a watchdog organization that litigates for limited government, property rights, individual rights, and a balanced approach to environmental regulations, in courts nationwide. PLF represents all clients free of charge.

Contact: Theodore Hadzi-Antich
Senior Staff Attorney
Pacific Legal Foundation

(916) 419-7111

M. Reed Hopper
Principal Attorney
Pacific Legal Foundation

(360) 279-0937

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