The U.S. Supreme Court granted certiorari June 28 to hear a case challenging the U.S. Environmental Protection Agency’s (EPA) issuance of an administrative compliance order under the Clean Water Act (CWA) without allowing for pre-enforcement judicial review. The case has serious implications for enforcement procedures and the timing of CWA jurisdictional challenges.

The case arises from a lawsuit originally filed in U.S. District Court in Idaho by landowners Michael and Chantell Sackett, who filled a parcel on their property with rock and dirt without first obtaining a permit, a violation of the CWA according to EPA. EPA determined that the parcel was a wetland under the CWA and issued a compliance order (which is enforceable only through an enforcement action in federal court) requiring the Sacketts to remove the material and return the wetland to its original condition.

The district court dismissed the case challenging the compliance order, concluding that the CWA does not allow court review of compliance orders before the EPA has started an enforcement action in federal court. The U.S. Court of Appeals for the Ninth Circuit agreed and, following other circuit courts, held that the CWA impliedly precludes pre-enforcement judicial review of compliance orders. The court cited evidence of congressional intent for such preclusion and held it does not violate due process.

Addressing the Sackett’s due process claim, the Ninth Circuit found that the CWA does not prevent the ability to use property or challenge jurisdiction, but rather it "channels judicial review through the affirmative permitting process." This is because the Sacketts could request a permit to fill their property and appeal a permit denial in court, where they would have an opportunity to challenge whether their property is subject to CWA jurisdiction. Instead, the Sacketts are asking the Supreme Court to allow landowners to challenge EPA jurisdiction over their property before any penalties are assessed, injunctions are issued, or CWA violations are alleged in court.

What’s so bad about that? As stated by the Ninth Circuit, the CWA’s “goal of enabling swift corrective action would be defeated by permitting immediate judicial review of compliance orders.” In addition, this type of review would allow landowners and corporations to take advantage of confusion lingering from the Rapanos case, in which the Court's justices could not agree on an interpretation of wetland jurisdiction under the act.

The case is scheduled for the Court’s fall term beginning in October. The Sacketts are represented by Damien Schiff of the Pacific Legal Foundation, a conservative group that promotes limited government. If the Supreme Court overturns the Ninth Circuit, EPA could face significant increases in costly and lengthy litigation, preventing the agency from compelling restoration and clean-up efforts, ultimately leading to the destruction of natural resources that often serve as natural pollution filters and that can help prevent extreme flooding and property damage.