In Sackett v. Environmental Protection Agency
, 132 S. Ct. 1367 (2012), the Supreme Court addressed whether the recipient of a Clean Water Act (“CWA”) Section 309(a) compliance order issued by the Environmental Protection Agency (“EPA”) may seek judicial review of the order under the Administrative Procedure Act (“APA”). The Court ruled that EPA’s compliance order was “final agency action” under the APA and that there were no other adequate legal remedies. The Court further ruled that the Clean Water Act does not preclude judicial review of Section 309(a) compliance orders.
The CWA prohibits the “discharge of any pollutant by any person,” 33 U.S.C. § 1311, without a permit into navigable waters, which is defined in the Act as “the waters of the United States,” 33 U.S.C. § 1362. If EPA determines that any person has committed an unauthorized discharge of a pollutant into waters of the United States, the Agency can either issue a compliance order or initiate a civil enforcement action against them. 33 U.S.C. § 1319(a)(3). The penalty for noncompliance is set “not to exceed [$37,500] per day for each violation,” 33 U.S.C. § 1319(d); 73 Fed. Reg. 75,345 (Dec. 11, 2008).
The Sacketts owned property in Bonner County, Idaho, just north of Priest Lake. They filled part of the property with dirt and rock in preparation for the construction of a house. Upon discovery of the unpermitted filling activities, EPA issued the Sacketts a CWA Section 309(a) compliance order that found that the Sacketts had committed an unauthorized discharge of pollutants into regulated waters and ordered them to restore the site in accordance with an EPA-approved Restoration Work Plan.
The Sacketts brought a civil suit against EPA under the APA, which allows for judicial review of “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. EPA contended that the compliance order was not final agency action and that the CWA precludes pre-enforcement judicial review of such orders. Six circuit courts of appeals had previously agreed with EPA’s position that CWA compliance orders are not subject to pre-enforcement judicial review.
The Supreme Court unanimously ruled, however, that the Clean Water Act does not preclude APA review of Section 309(a) administrative compliance orders. The Court found that the issuance of the compliance order by EPA was a final agency action because the order marked the consummation of EPA’s decisionmaking process, determined obligations on the part of the Sacketts, and exposed the Sacketts to legal consequences (i.e., penalties) for non-compliance with the order. The Court also found that the Sacketts had no other adequate remedy in court: they were unable to initiate a suit against EPA and the option of bringing suit after denial of a CWA Section 404 permit would not necessarily address the CWA claims.