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Supreme Court OKs Pre-Enforcement Judicial Review of EPA’s Wetlands Compliance Orders
The Sacketts filled a half-acre of wetlands on their residential property prior to beginning construction. U.S. EPA issued a compliance order that asserted that the wetlands fell under EPA jurisdiction and requiring the Sacketts to restore the site in accordance with an EPA workplan. The Sacketts sought judicial review, which was denied by the District Court and the Ninth Circuit Court of Appeals on the basis that the Clean Water Act precludes pre-enforcement judicial review of compliance orders. The Supreme Court reversed that determination.
In Sackett v. Environmental Protection Agency, No. 10-1062, the Sacketts argued that Chapter 7 of the Administrative Procedures Act, which provides for judicial review of final agency actions, allowed the court to review the EPA compliance order. The Supreme Court agreed, reversing the holdings of the lower courts. While the case focused on the provisions of the Clean Water Act, and seems driven in part by frustration over the continuing confusion about the reach of EPA's jurisdiction over "navigable waters," the case may nevertheless have a significant impact on EPA's use of compliance orders under other statutes as well.