Marten Law on Sackett v. EPA: Supreme Court to Hear Challenge to Clean Water Act Bar on Pre-Enforcement Review

Russell Prugh   By Russell Prugh, Associate, Marten Law PLLC

In this Emerging Issues Analysis, Russell Prugh of Marten Law PLLC discusses the U.S. Supreme Court's decision to grant certiorari in Sackett v. EPA, a Ninth Circuit decision barring defendants from obtaining pre-enforcement review of EPA administrative compliance orders issued pursuant to the Clean Water Act.

"The U.S. Supreme Court has agreed to review a Ninth Circuit decision barring defendants from obtaining pre-enforcement review of EPA administrative compliance orders issued pursuant to the Clean Water Act (CWA)-Sackett v. EPA. 'Pre-enforcement review' refers to the ability of a defendant to obtain judicial review of administrative compliance orders without having to wait to be sued by EPA in an enforcement action", writes Russell Prugh. "The Supreme Court's decision to grant certiorari in the CWA case stands in contrast to its decision a month earlier not to hear a case challenging CERCLA's pre-enforcement bar."

"The CWA prohibits the discharge of dredged or fill material into waters of the United States without a § 404 permit," the author points out. "While the U.S. Army Corps of Engineers (Corps) administers the § 404 permitting program, the Corps shares enforcement duties for unpermitted discharges of dredged or fill material with EPA."

"The petitioners, Chantell and Michael Sackett, own a 0.63 acre undeveloped parcel in Idaho. In 2007, the Sacketts filled a portion of their property without a CWA permit, " Prugh explains. "EPA determined that the fill violated the CWA because the parcel contained a jurisdictional wetland and issued an administrative compliance order requiring the Sacketts to remove the fill and restore the parcel to its original condition. The Sacketts petitioned EPA for a hearing to challenge the wetland determination and, after EPA refused, filed suit in district court. Citing the pre-enforcement bar, the district court dismissed the Sackett's case for lack of jurisdiction, and the Sacketts appealed to the Ninth Circuit."

Russell Prugh is an associate at Marten Law PLLC's Seattle office. Russell's practice focuses on environmental and natural resources litigation and environmental permitting for facilities and projects in the Pacific Northwest and Alaska. Russell has particular experience with stormwater compliance issues and in litigation arising under the Clean Water Act, CERCLA, MTCA, and other federal and state environmental laws. Russell earned his Juris Doctor, summa *** laude, from Vermont Law School, where he served as a National Moot Court Competition team member and as a managing editor of the Vermont Law Review. He received his Bachelor of Arts in Natural Resources from the University of the South (Sewanee). Prior to joining Marten Law Group, Russell served as a legal intern with the RCRA Enforcement Division of the Environmental Protection Agency in Washington, D.C., and a full-time intern to the Honorable John A. Dooley, Associate Justice of the Vermont Supreme Court. Following law school, Russell served as law clerk to the Honorable Patrick J. McKay, Superior Court Judge, State of Alaska.

Wetlands

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