Clean Water Act Does Not Preclude Judicial Review

On March 21, 2012, the United States Supreme Court decided the case of Sackett, et vir, v. Environmental Protection Agency, et al., 566 U.S.      (2012). This important decision upholds the rights of landowners who challenge compliance orders issued by the United States Environmental Protection Agency (“EPA”) under the federal Clean Water Act, 33 U.S.C. §1251 et seq.

The Clean Water Act prohibits a discharge any pollutant from a point source into navigable waters of the United States, unless a permit is obtained.  Whenever the EPA Administrator finds that a person is in violation of the Act, the Administrator shall issue an order requiring such person to comply with the Act or bring a civil action. When the EPA prevails in a civil action, the Act provides for civil penalties of up to $37,500 per day for each violation.

In Sackett, the EPA issued a compliance order to landowners who were preparing to construct a house on a small residential lot near a lake in Idaho. In preparation for constructing the house, the Sacketts filled in part of their lot with dirt and rock. The lot is separated from the lake by several lots containing permanent structures, but the EPA concluded that the lot contained protected wetlands.

After receiving the compliance order, the Sacketts asked the EPA for a hearing on whether their property was subject to the Act, but that request was denied. They then brought a federal court action seeking declaratory and injunctive relief on grounds that the compliance order was “arbitrary [and] capricious” under the federal Administrative Procedure Act (“APA”), 5 U. S. C. §706(2)(A), and that it deprived them of “life, liberty, or property, without due process of law,” in violation of the Fifth Amendment. The District Court dismissed the claims for want of subject matter jurisdiction and the Ninth Circuit Court of Appeals affirmed, 622 F. 3d 1139 (2010).

The Supreme Court reversed, in an opinion delivered by Justice Scalia, holding that the EPA compliance order is a final agency action for which there is no adequate remedy, other than APA review, and that the Clean Water Act does not preclude that review.

And there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into "voluntary compliance"

- Justice Antonin Scalia

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