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Recent Decision by the U.S. Supreme Court Concerning Clean Water Act (Wetlands) Enforcement

Earlier in January, the U.S. Supreme Court heard oral argument in Sacket v. EPA, a Clean Water Act (“CWA”) enforcement case that concerns whether CWA administrative orders are subject to pre-enforcement judicial review. In the Sacket case, the property owners planned to build a home on a one-half acre parcel of land in Idaho. After they placed fill on a portion of the land before beginning construction, the EPA issued an administrative compliance order alleging that the owners violated the CWA by filling in a wetland without first obtaining a permit. The EPA ordered the owners to remove the fill material, restore the parcel to its original condition, and monitor the fenced-off site for three years, or face potential penalties of up to $37,500 per day.

The property owners sought a hearing with EPA to challenge the wetlands determination, and when EPA refused to grant a hearing, the owners filed a federal court lawsuit seeking an injunction against EPA. The trial court dismissed the lawsuit, finding that the CWA precludes judicial review of compliance orders before EPA initiates an enforcement action in federal court, and that failure to provide such review does not constitute a violation of due process. The ruling was affirmed by the Ninth Circuit on appeal, which relied on similar rulings from other Circuits.

While the U.S. Supreme Court's decision may not issue for months, questioning by the Justices suggest that the high court could limit the EPA's authority to issue these types of compliance orders without judicial oversight. Such a result could have a far-reaching impact on the EPA's enforcement authority in this and other contexts, and could give parties a new avenue to challenge EPA orders.

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