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In a rare unanimous decision last Wednesday, [Sackett vs. United States Environmental Protection Agency] the United States Supreme Court issued a strong reprimand to the Environmental Protection Agency (“EPA”) and the agency’s legal position that certain of its “administrative orders” were not subject to immediate court review.  The Court also expressed clear frustration over notoriously unclear provisions of the Clean Water Act as pertains to regulated wetlands. 
 
The facts of the case are simple.  In preparation for constructing a home, a property owner allegedly filled in part of his lot.  EPA alleged that the property owner filled approximately one-half acre of regulated wetlands in violation of the Clean Water Act.  EPA ordered immediate restoration of the supposed wetland area and threatened fines which could amount to $75,000.00 a day for each day the “violation” continued.  The property owner disagreed that it filled regulated wetlands. EPA said judicial review of the administrative order was not immediately available.  Instead, EPA argued that the property owner was only entitled to “informal discussions” with the agency rather than court review.  The Supreme Court strongly disagreed and stated “there is no reason to think that the Clean Water Act was uniquely designed to enable the strong arming of regulated parties into “voluntary compliance” without the opportunity for judicial review”.  The Court did not decide the ultimate question of when wet areas became “wetlands” subject to federal jurisdiction, but the property owner will now have his day in Court on that issue.
 
Most interesting is the frustration expressed not only by Justice Scalia who wrote the Court opinion, but also by Justices Alito and Ginsburg who wrote separate concurring opinions.  Justice Alito chastised Congress, the EPA and the United States Army Corps of Engineers for refusing to clearly define what is and is not a regulated wetland.  Said Alito “for 40 years Congress has done nothing to resolve this critical ambiguity and the EPA has not seen fit to promulgate a rule providing a clear and sufficiently limited definition”.  Justice Ginsburg criticized the “uncertain reach of the Clean Water Act and the draconian penalties imposed” and the fact that property owners seemingly have “little practical alternative but to dance to the EPA’s tune”.
 
It seems that this decision evidences what appears to be the Supreme Court’s growing frustration over the continuing refusal of EPA, the Army Corps of Engineers and Congress to offer meaningful guidance to property owners regarding the reach of federal regulations in this matter.  Perhaps the Court will soon take matters into its own hands if the confusion persists.