Supreme Court to Hear EPA Water Policy case on Monday

Chad Phillips

The US Environmental Protection Agency has long responded to violations of the Clean Water Act by issuing administrative compliance orders, which can’t be challenged in court until the EPA initiates enforcement actions. An Idaho couple says that’s not fair, and their challenge has gone all the way to the Supreme Court. The case is scheduled to be heard Monday.

6 January 2011 | Michael and Chantell Sackett say they had no intention of making a federal case out of anything when they started building a house on a half-acre lot near Priest Lake, Idaho, in 2007. The US Environmental Protection Agency (EPA), however, says the couple dredged and filled in a patch of wetland without a permit – a clear violation of the Clean Water Act.

On Monday, the US Supreme court will hear arguments from both sides in a case that will have ramifications for wetlands protection across the United States. At issue isn’t whether the Sackett’s property is or is not a wetland, but how the EPA responds to what it percieves as damage to wetlands.

In the case of the Sacketts, the agency sent the couple an “administrative compliance order” in November 2011 requiring them to halt construction and restore the land to its earlier state. The couple contested the EPA’s assessment, pointing out that land wasn’t wet, but dry – as wetlands often are. The EPA responded by offering them extra time to comply, relaxing its stringent restoration requirements, and offering to work with the couple – although it’s not clear how far the EPA was willing to go.

The Sackett’s, for their part, didn’t wait to find out. They chose instead to sue the agency, arguing that the cost of getting a dredge-and-fill permit was too high for them to risk going through the process only to be turned down.

By going to court, the Sacketts are challenging the way the EPA deals with wetlands across the United States. Normally, when a compliance order is handed down, the recipient has two basic options. One is to comply, which can be costly and time-consuming. The other is to wait for the EPA to sue to enforce the order, at which point the recipient can make his or her case to the judge.

The danger of this second approach is that the landowner risks being on the hook for substantial penalties – in the Sacketts’ case, up to $37,500 for every day that they failed to follow the compliance order. The Sacketts argue that there should be a third option, that they should be able to challenge the compliance order itself without waiting for EPA enforcement. The EPA argues that the compliance order isn’t the right stage to open things up to judicial review, in part because the Sacketts could have worked with the EPA on a solution.

The Sacketts, in other words, say it should be for a court to decide whether their land is wetland that is subject to the Clean Water Act at an early stage in the process. The EPA says that it should be left up to the agency until it becomes clear that the landowner and the agency cannot work it out between themselves – that is, until the EPA moves to enforce the compliance order in court. The suit has now made it all the way to the US Supreme court, which will hear the case on Monday.

At issue in this case isn’t whether the land is or is not part of a wetland system, but whether a landowner can bring a lawsuit challenging an administrative compliance order before the EPA seeks to enforce that order in court. The agency’s approach, say the Sacketts, puts landowners at risk of major sanctions and perhaps even criminal charges.

Why it Matters

If the court sides with the Sacketts, it could have large implications for how the EPA handles compliance orders in the future. The Agency issues approximately 3,000 administrative compliance orders every year to individuals and businesses, typically resulting in compliance.

If compliance orders can be appealed in a court, the EPA’s power to quickly correct a violation would be blunted. The precedent would be set to allow individuals and businesses to tie compliance order up in court—leading to delays in compliance and significant court costs for the EPA.