Washington Report

Advocacy Updates from Washington D.C.

Supreme Court Hears Oral Arguments on Wetlands Case

January 16, 2012

The U.S. Supreme Court heard oral arguments in the Sackett v. U.S. EPA on January 9, 2012. The arguments presented by both lawyers elicited spirited discussion among the Justices. Experienced court watchers expect a decision in this case in late spring.

The Sacketts own a lot in Priest Lake, ID, where they started to build a home. The EPA determined that the site contained jurisdictional wetlands under the Clean Water Act (CWA), and that the Sacketts had failed to obtain a permit in violation of the law. EPA issued an Administrative Compliance Order (ACO) preventing further construction on the site, requiring the Sacketts to restore the wetlands and threatening the Sacketts with fines.

The Sacketts did not believe that the wetlands on their site were under the jurisdiction of the CWA. The Sacketts sued the EPA, but were dismissed in District Court, and also dismissed in the Ninth Circuit Court. The Ninth Circuit accepted the government’s argument that the Sacketts could have applied for a permit, and if denied, could have challenged EPA’s jurisdiction under the CWA and permit denial.

The Court will address two questions: (1) whether the Sacketts may seek pre-enforcement judicial review of the EPA order under the APA; and (2) if not, whether the inability to obtain pre-enforcement judicial review of the ACO violates their rights under the Due Process Clause.

NAR submitted an Amicus Brief for this case in support of the Sackett, in coalition with several other regulated associations.

The brief emphasized three basic points. First, jurisdiction under the CWA is a fundamental and controversial concept to the law, and that the agencies have used their administrative powers to adopt broader and broader definitions of “waters of the U.S.” even though the statute has remained unchanged.

Second, that assertion of jurisdiction under the CWA is final agency action under the APA and case law, because the decision marks the consummation of the agencies’ decision-making, and the decision has legal and practical consequences.

Third, the brief developed practical examples of the problems that arise in prohibiting judicial review of agencies asserting jurisdiction. The brief shows that the only way for a landowner to challenge the agencies’ overbroad assertions of jurisdiction is by running the gauntlet of the costly and time-consuming permitting process he believes does not apply to his property.

The case is important because current case law limits the circumstances under which a landowner or other entity can obtain judicial review of the assertion of CWA jurisdiction by the Army Corps of Engineers or the EPA . These assertions have been held to be unreviewable because the courts have concluded that they are not final agency action or that the CWA precludes review.

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