Supreme Court Holds EPA Compliance Order Asserting Clean Water Act Jurisdiction Is Subject to Judicial Review

by Sheppard Mullin Richter & Hampton LLP

Sackett v. Environmental Protection Agency, 566 U.S. ___ (2012) (decided March 21, 2012)

[author: James Rusk]

Private property owners are entitled to immediate judicial review of Environmental Protection Agency compliance orders that seek to regulate their property under the federal Clean Water Act ("CWA"), the Supreme Court unanimously held last week. The Court's much anticipated decision in Sackett v. Envtl. Protection Agency says that property owners need not wait for the EPA to bring a judicial enforcement action in order to contest the agency's assertion that their property contains "waters of the United States" subject to CWA jurisdiction. But at least one member of the Court believes that Justice Scalia's narrowly crafted opinion will have limited benefits for most property owners and that Congressional action is still needed to clarify the extent of CWA jurisdiction.

Sackett involved a couple who filled approximately a half acre on a residential lot they owned near Priest Lake in Idaho. The EPA subsequently issued an administrative compliance order to the property owners, finding that the filled property contained wetlands that were "waters of the United States" subject to federal jurisdiction under the CWA. The order found that the fill of the wetlands violated CWA § 301 and directed the Sacketts to restore the filled wetlands according to an EPA work plan.

The Sacketts did not believe their property was subject to the CWA and requested a hearing before the EPA. EPA denied the request. The EPA's action presented the Sacketts with two unpalatable options: incur significant expense to remove the fill and restore the alleged wetlands, or wait for the EPA to bring a civil enforcement action while the potential penalties continued to accrue. The CWA provides for penalties of up to $37,500 per day for violations, and the EPA takes the position that the penalties are doubled when a person has received a compliance order and failed to comply.

The Sacketts instead filed suit in federal district court, claiming that the compliance order violated the Administrative Procedure Act ("APA") and deprived them of protected property interests without the due process guaranteed by the Fifth Amendment. The district court dismissed the Sacketts' claims for lack of subject matter jurisdiction, and the Ninth Circuit affirmed, finding that the CWA precludes pre-enforcement judicial review of compliance orders. Other circuits have reached the same conclusion.

The Supreme Court reversed, holding that the administrative compliance order was "final agency action" subject to judicial review under the APA. According to the Court, the order "has all the hallmarks of finality." It determined rights or obligations (including the obligation to restore the filled areas), gave rise to legal consequences (including the potential for double penalties), and marked the consummation of the EPA's decision making process. The Sacketts also had no other adequate remedy in a court, because they could not initiate the civil enforcement action in which judicial review of the EPA's order normally would occur. Although the government argued that the CWA precludes pre-enforcement judicial review of administrative compliance orders, the Court found no basis in the statute for that inference.

Justice Alito, in a concurring opinion, wrote that the availability of judicial review "provides a modest measure of relief" but that the "notoriously unclear" reach of the CWA and the "draconian penalties" available for violations will still leave most property owners "with little practical alternative but to dance to the EPA's tune." According to Justice Alito, "[r]eal relief requires Congress to . . . provide a reasonably clear rule" regarding the extent of "waters of the United States" over which the CWA confers jurisdiction. None of the Court's other members joined Justice Alito's call for Congressional action.

Justice Ginsburg separately wrote a brief concurring opinion, noting that the Court's decision does not resolve whether the Sacketts could challenge the terms and conditions of the compliance order, in addition to the EPA's claim of regulatory jurisdiction, prior to enforcement of the compliance order.

All in all, the Sackett opinion is not the sweeping defense of private property rights that some had expected after the Court's pointed questioning during oral argument. But the availability of pre-enforcement review provides a meaningful remedy for those facing compliance orders.

An important related issue is whether EPA and the lower courts will view the Court's reasoning as undermining the Ninth Circuit's 2008 holding that a jurisdictional determination by the Army Corps of Engineers (the federal agency responsible for permitting fill of waters of the United States under the CWA) is not reviewable final agency action because it does not "impose an obligation, deny a right, or fix some legal relationship." Fairbanks North Star Borough v. U.S. Army Corps of Engineers, 543 F.3d 586, 591, 593 (9th Cir. 2008), cert. denied, 129 S.Ct. 2825. To the extent that holding remains intact, a property owner who contests the presence of "waters of the United States" on their property still cannot have their day in court without either completing the Corps' permit process, or filling the property without authorization and incurring the risk of a compliance order that will result in substantial liability if upheld.


Written by:

Sheppard Mullin Richter & Hampton LLP

Sheppard Mullin Richter & Hampton LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.