Clean Water Act Compliance Orders Can Be Challenged In Court
By: George J. Mannina, Carollyn B. Lobell, Robert C. Horton
03/27/12
Reversing the U.S. EPA, and every Federal Court of Appeals that has considered the specific issue, a landmark 9-0 Supreme Court decision handed down March 21, 2012 holds that land-owners may challenge EPA administrative compliance orders issued under the Clean Water Act ("CWA") in court before EPA asks a court to enforce the order. Sackett v. EPA, 2012 U.S. LEXIS 2320 (March 21, 2012).
The case arose because Michael and Chantell Sackett put fill dirt on their land in Bonner County, Idaho to build a house. EPA, which shares enforcement authority with the U.S. Army Corps of Engineers ("Corps"), asserted the filled-in area contained wetlands subject to the CWA and the Sacketts violated the CWA by filling in jurisdictional wetlands without a CWA section 404 "dredge and fill" permit. EPA issued an administrative compliance order that required the Sacketts to undo all work on their property and restore the area to its pre-construction condition.
Until now, landowners who found themselves in the Sacketts' position had little choice but to obey such compliance orders. Under a compliance order, civil penalties of up to $75,000 per day per alleged violation accrue – up to $37,500 for allegedly violating the CWA, and up to an additional $37,500 for violating the administrative compliance order itself. And the penalties mount up to a point in time of EPA's choosing to seek a court order enforcing the compliance order. To put this into perspective, civil penalties could accrue at the rate of $1 million every two weeks. Thus, compliance orders carried virtually irresistible pressure to comply as quickly as possible, even where CWA jurisdiction is questionable.
