Supreme Court Expands Right to Challenge Federal Assertions of Clean Water Act Regulatory Jurisdiction

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On March 21, 2012, the U.S. Supreme Court ruled that landowners may bring a civil action under the AdministrativeProcedure Act to challenge administrative compliance orders issued under the Clean Water Act. Sackett v. EPA, __ U.S.___, 2012 WL 932018 (U.S. March 21, 2012) (No. 10-1062).

Highlights

The U.S. Supreme Court, in Sackett v. Environmental Protection Agency, ruled that property owners can challenge infederal court Environmental Protection Agency ("EPA") administrative compliance orders issued under the Clean WaterAct.

The effect of the decision will likely not be limited to administrative compliance orders, but may allow challenges toformal wetland jurisdictional determinations, because the Supreme Court rejected the principal defenses that EPA andU.S. Army Corps of Engineers ("Corps") have used to minimize judicial review of their assertions of wetland jurisdiction.

The decision gives landowners and project proponents a much greater ability to challenge federal agencies' assertionsof Clean Water Act wetland jurisdiction over specific properties.

The likely increase in challenges by parties to broad assertions of wetland jurisdiction by the agencies may well result inthe limiting by federal courts of the scope of that jurisdiction.

Please see full alert below for more information.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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