The United States Supreme Court has unanimously ruled that Environmental Protection Agency (EPA) administrative orders under the Clean Water Act are subject to pre-enforcement judicial review. However, the Supreme Court’s decision did not define the limits of EPA’s Clean Water Act jurisdiction. Controversy is likely to continue over EPA’s most recent attempt to issue guidance regarding that issue, and given the Supreme Court’s decision, that controversy will likely continue to involve the courts.

Chantell and Michael Sackett own a 2/3-acre lot in Idaho, which they partly filled in with dirt and rock to build a house. EPA issued an order finding that the filling violated the Clean Water Act. EPA ordered the Sacketts to remove the fill and restore the property to its original condition and threatened up to $75,000 in penalties for each day they failed to do so.

EPA refused the Sacketts a hearing. The Sacketts sued. The Federal District Court dismissed the lawsuit on the grounds that the Clean Water Act barred judicial review of an order before EPA chooses to bring an action in court to enforce it. The Ninth Circuit Court of Appeals affirmed.