DOES EPA HAVE JURISDICTION OVER YOUR BIRDBATH?

With the media frenzy during the recent Supreme Court oral argument in the "Obamacare" case, an important Supreme Court decision issued also in March largely was ignored.

A couple owned a 2/3 acre residential lot in Idaho, near a lake but separated from it by several lots containing permanent structures. To prepare their lot for construction of a house, they caused a portion of the lot to be filled with dirt and rock.

Months later, the couple received a compliance order from EPA. The order found that the lot contained wetlands adjacent to the lake, that the lake is a "navigable water," that the couple discharged fill material into wetlands on the site, and that they caused fill material to enter into waters of the United States and thereby discharged pollutants from a point source-a violation of the federal Clean Water Act. The compliance order demanded restoration of the lot.

The Clean Water Act provides for a civil penalty of up to $37,500 per day of violation. If a party fails to comply with a compliance order, the penalty increases to up to a total of $75,000 per day of non-compliance.

The couple believed that their lot is not subject to the Clean Water Act. However, their request for a hearing before EPA was denied. Accordingly, the couple filed suit in federal District Court for judicial review under the federal Administrative Procedure Act claiming that the compliance order was arbitrary and capricious and denied due process. The District Court dismissed the complaint and the Court of Appeals affirmed, concluding that the Clean Water Act precludes judicial review of EPA compliance orders. The Supreme Court then agreed to hear the case.

Before the Supreme Court, EPA argued that there can be no judicial review of its compliance orders. The Supreme Court unanimously disagreed, holding that the compliance order in this case is a final agency action for which there is no adequate remedy other than review under the Administrative Procedure Act, and the Clean Water Act does not preclude such review.
Justice Scalia wrote:"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-even judicial review of the question whether the regulated party is within EPA's jurisdiction."

In a concurring opinion, Justice Alito was blunt: "The position taken in this case by the Federal Government-a position that the Court now squarely rejects-would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency (EPA) employees."

The appeal before the Supreme Court involved only the right to judicial review of an agency order, not the shadowy question whether the couple's lot in fact is a jurisdictional wetland. That question presumably will be addressed by the remand to the lower courts and ultimately may wind up in the Supreme Court again. However, the Court's decision allowing judicial review of the compliance order suggests its response to regulatory orders and mandates imposed without due process protections. (Sackett v. Environmental Protection Agency, Supreme Court No. 10-1062, March 21, 2012)

So. could EPA have jurisdiction over your birdbath? The question may not be just for the birds.