On June 28th, the U.S. Supreme Court accepted for review a 2010 decision in a wetlands case out of Idaho. The issue in the case is whether an alleged violator may seek review of an EPA administrative order before the agency enforces the order. Because there are penalties associated with failing to comply with administrative orders, recipients risk incurring additional penalties if they refuse to comply in order to provoke enforcement in order to obtain judicial review of the underlying matter (i.e., is there a jurisdictional wetland on the property). The 9th Circuit, it its 2010 decision, held that the Clean Water Act precludes pre-enforcement review and that the lack of such review does not violate the Constitution.

The property owners in the case own a lot near Priest Lake in Idaho. They filled about .5 acres of a .63 acre property without first obtaining a permit. The EPA then issued a compliance order, alleging that the property is a wetland and ordering the owners to remove the fill and restore the property to its original condition. The property owners disagree that the EPA has jurisdiction over the property.

Because all the circuit courts that have reviewed the issue have held that the Clean Water Act precludes pre-enforcement review of such orders, it is somewhat surprising that the Supreme Court decided to review this decision. The Court recently declined to review a 2010 decisionby the DC Circuit in which the court rejected General Electric’s argument that unilateral CERCLA cleanup orders without pre-enforcement review violate the Due Process Clause. Thus, it seems likely that the Court is interested in the 9th Circuit’s interpretation of the Clean Water Act and not the property owners’ constitutional arguments.