US Supreme Court to Consider Right to Challenge Wetland Determinations

Richard Frank writes in Berkeley Law School's Environmental Planet blog about a case that the US Supreme Court has decided to hear next term, Sackett v. U.S. Environmental Protection Agency, No. 10-1062, that could have ramifications for developers everywhere.  He sets up the case this way:

Lawrence Hurley has this at Greenwire about the case.

The Sacketts filled in a portion of their lot near Priest Lake, Idaho, in preparation for building a house on the property. EPA issued an administrative compliance order against the Sacketts, alleging that the parcel is a wetland subject to the CWA, and that the Sacketts violated the Act by filling their property without first obtaining a permit under CWA section 404. EPA’s compliance order directed the Sacketts to restore the property to its original condition, or else be subject to monetary penalties under the Act.

The Sacketts unsuccessfully sought an administrative hearing before EPA to challenge the agency’s finding that their property is a wetland subject to CWA permitting requirements. They then sued in federal court, claiming that EPA’s issuance of the compliance order was both subject to judicial review and factually erroneous; the absence of such review, argued the Sacketts, violates the Administrative Procedure Act as well as their constitutional right to due process.

The Sackett's problem is one that is seen everywhere, but particularly in wetlands cases.  The Corps of Engineers, or EPA, or the state, makes a determination that a certain location is a wetland or some other protected class of property, and the property owners have no opportunity to challenge that decision on the merits.  They must wait until an enforcement action is brought against them in order to challenge the underlying determination. 

The difference between a civil or administrative challenge to a wetland determination, and an enforcement action, is huge.  Once an enforcement action is brought, the penalty sought will be significant fines and/or jail time.   Property owners who are willing to challenge the underlying determination, when the cost of being wrong will be the cost of returning property to its original state or paying for mitigation, may not be willing to risk jail time.  The result is that property owners forgo legitimate objections to wetland determinations, because of the huge cost of potentially being wrong.

The lower federal courts sided with EPA.  Here's hoping the Supreme Court will even the playing field by allowing legal challenges to wetland determinations  before enforcement actions are brought.