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By Linda Roeder
An Environmental Protection Agency senior official said May 3 that the agency is continuing to issue administrative compliance orders under the Clean Water Act, despite a recent court setback and that he does not expect a major shift in its enforcement program.
The U.S. Supreme Court held in March that compliance orders can be challenged in court, but Mark Pollins, director of EPA's Water Enforcement Division, told a legal forum the agency has no intention of stopping its use of the orders.
“I don't see dramatic shifts in how administration enforcement authority is used, but I do see continued evaluation,” Pollins said during a wetlands seminar sponsored by the American Bar Association-American Law Institute.
Pollins's remarks came just a few weeks after the high court found a preliminary EPA administrative order issued in a wetlands case was a “final agency action” subject to judicial review (Sackett v. EPA, 73 ERC 212 (U.S.); 55 DER A-28, 3/22/12).
In the Sackett case, an Idaho couple sought the right to challenge an EPA administrative compliance order under the Administrative Procedure Act. EPA issued the order to Chantell and Michael Sackett, who filled in about a half-acre of their property near Priest Lake, Idaho to build a house.
The agency's 2007 compliance order had alleged the couple failed to obtain Clean Water Act Section 404 permits to dredge and fill wetlands on their property.
In the wake of the Supreme Court ruling, Pollins said it is possible the agency might rely more on informal means such as violation notices or warning letters, to ensure parties engage in a meaningful dialogue. But at this point, he said, “I just don't know.”
Meanwhile, EPA's pace of issuing compliance orders remains unchanged, he said. During the past six years, he said, the agency has issued approximately 2,000 compliance orders pertaining to various portions of Clean Water Act.
The practice, he said, “will continue, maybe with some modifications.”
Pollins described the Supreme Court's ruling as a narrow one that, while it does give parties the right to legally challenge compliance orders, does not limit the agency's authority to issue them nor does it limit their applicability. The court also did not hold the compliance order was substantially deficient, he said.
“What it really changed is that [these] orders are now reviewable. It's pretty much the same game,” he said. The court's decision is limited solely to an order's finality and pre-enforcement review, but does not affect EPA's ability to issue or enforce these orders, Pollins said.
He said that administrative orders clarify expectations by setting forth EPA's views on what is necessary to comply with the law. This frequently leads to further consultation and discussions, resulting in compliance.
But recipients of such letters view them as much more than opening up an agency dialogue, said Virginia Albrecht, an attorney with the firm Hunton & Williams, who represents developers and businesses. “For the most part, people subject to the Clean Water Act are just mom and pops with private property,” she told the forum.
Jon Devine, a senior attorney with the Natural Resources Defense Council, said the court's decision “was not good news. The bad news is that EPA's ability to quickly demand compliance with the law was undercut.”
Still, he said, the decision was not disastrous because it was not an indictment of efforts to clarify the Clean Water Act and was not a disapproval of administrative compliance orders even though it gives recipients the right to challenge them in court.
The Sackett decision did not provide an opportunity for EPA to stand down because it still leaves the agency's authority intact, Devine said. But he cautioned: “We strongly urge EPA not to take Sackett as a stop-work order but to vigorously enforce the act.”
Ruth Hamilton Heese, senior assistant attorney general with the Alaska Department of Law's Environmental Section, said that, as landowners, states also have an interest in pre-enforcement judicial review under the Clean Water Act. Alaska was one of 10 states that filed a brief supporting the petitioners in the Sackett case.
Courts also need to deal “head-on” with the question of whether a jurisdictional determination constitutes a final agency action, Heese said.
The reason to have a jurisdiction determination occurs when a property owner wants to know “where the line is” on a parcel for potential development, Albrecht said. “People are not looking to have lawsuits. For the most part people really want to do their projects,” she said.
A determination that a parcel of land is a wetland protected by the Clean Water Act would subject the landowner to permitting requirements.
In a related development, the U.S. Court of Appeals for the Ninth Circuit on May 3 remanded the Sackett case to the U.S. District Court for the District of Idaho for further proceedings, as directed by the Supreme Court.
By Linda Roeder
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