Supreme Court Rules Property Owners May Challenge EPA Compliance Orders

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In a closely-watched case, the U.S. Supreme Court on March 21 told the Environmental Protection Agency (“EPA”) to stop “strong-arming . . . regulated parties” who wish to go directly to court to contest compliance orders that assert jurisdiction over wetlands as well as other waters under the Clean Water Act (“CWA”). EPA had long maintained that property owners could not challenge in court the assertion of jurisdiction over wetlands and waters when EPA issues compliance orders against owners for filling those features without a permit. Accordingly, property owners had to wait for EPA to bring a civil suit against them for alleged CWA violations before they could argue in front of a judge that the wetlands or waters were not subject to federal jurisdiction. Meanwhile, EPA could and would assess heavy financial penalties against owners for each day they failed to abide by a compliance order, even if an owner believed the U.S. had no jurisdiction over its land. But not any longer.

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