Landowners Win Key Wetland Case at Supreme Court

March 21, 2012 | Roger McEowen

The Clean Water Act (CWA) prohibits the discharge of any “pollutant” into the “navigable waters of the United States” without a permit.  The provision has spawned many lawsuits on various issues, and the U.S. Supreme Court a few years ago failed to clear up the issue of navigability and, hence, the scope of federal jurisdiction over wetlands.  Another aspect of wetland litigation is procedural.  When the Environmental Protection Agency (EPA) determines that a violation has occurred, they either issue a compliance order or bring an enforcement action.  Civil penalties attach per day for alleged violations, and those can become criminal under certain circumstances.  But, what happens when the EPA issues a compliance order, but doesn’t bring an enforcement action?  The landowner is effectively stopped in their tracks with civil penalties accruing if regulable activity continues, and no means of challenging the compliance order until the EPA brings an enforcement action.  One of the key points of administrative agency actions is that a party can’t challenge the action in court until the agency action is “final.”  So, is a compliance order final agency action?  In a case from Idaho, the EPA maintained that it was not.

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