If you own property with wetlands, or are concerned about the development of property with wetlands, the attorneys at Chenoweth Law Group can help you understand your environmental litigation options under the Clean Water Act (CWA). These options may soon change, depending on how the U.S. Supreme Court rules in Sackett v. United States Environmental Protection Agency, 622 F.3d 1139 (9th Cir. 2010) granting cert. in part, 131 S.Ct. 3092 (2011). The court heard oral arguments on January 9, 2012.
In 2007, the Sacketts, who own a 0.63 acre lot about 500 feet from Priest Lake (Idaho), “filled” in 0.5 acres of their lot with dirt and rock as they prepared to build a house. In November of 2007, EPA determined that the property was a protected wetland under the CWA, and that the Sacketts had violated the CWA by not obtaining a permit prior to filling in the wetland. EPA then issued the Sacketts an administrative “compliance order.” The order compelled them to remove the fill material and to restore the wetland, or risk civil penalties of up to $32,500/day, and administrative penalties of up to $11,000/day. The Sacketts sought a hearing from EPA, but EPA denied the request. The Sacketts then filed suit in the United States District Court for the District of Idaho. The question posed to the U.S. Supreme Court is whether the Sacketts can seek judicial review of the administrative order before EPA initiates a judicial action to enforce the order. If the court finds that the Sacketts have no right to pre-enforcement review, the next question is whether the CWA compliance order process (without pre-enforcement review) violates their constitutional rights to due process.
The district court dismissed the Sacketts’ claims, holding that the CWA precludes pre-enforcement judicial review of EPA compliance orders. The Ninth Circuit affirmed. In its holding, the court emphasized that compliance orders (without pre-enforcement review) allow EPA “to act to address environmental problems quickly and without becoming immediately entangled in litigation.” 622 F.3d at 1144. EPA, and environmental interests argue that pre-enforcement review of compliance orders would allow landowners to delay corrective action, and would undercut EPA’s ability to negotiate settlements with offending landowners.
The Sacketts then argued that a compliance order can be issued “on the basis of any information available,” and that the determination leading to a compliance order need not be verified by a hearing on the merits. As such, without pre-enforcement review of the order, they argued that they would be automatically subject to daily accruing penalties regardless of the merits of the alleged violation. The Ninth Circuit disagreed, holding that although EPA can issue a compliance order “on the basis of any information available,” it cannot actually assess penalties unless it proves, by a preponderance of the evidence, that the defendants actually violated the CWA in the manner alleged by EPA. 622 F.3d at 1145-46. Thus, according to the Ninth Circuit, the Sacketts’ due process rights were not violated.
If the U.S. Supreme Court overturns the Ninth Circuit, there will be implications for environmental enforcement by EPA, and a likely increase in environmental litigation by landowners home to wetlands. If you want to learn how this case might affect you, have questions about developing your property so as to comply with the CWA, or are concerned about the development of property with wetlands, please contact Chenoweth Law Group at 253-200-5991 to schedule a consultation.