EPA Drops Compliance Order on Sacketts

OMAHA (DTN) -- More than a decade after EPA cited an Idaho property owner for a Clean Water Act violation that led to a long court battle, the agency has backed off a compliance order on the land.

What remains in question is whether Priest Lake, Idaho, residents Chantell and Michael Sackett will ever be able to build on their property determined by EPA in 2008 to be a federally protected wetland. The EPA alleged the Sacketts filled in the wetland.

In 2012, the U.S. Supreme Court ruled in favor of the Sacketts, providing farmers and other landowners a legal leg to stand on when it comes to challenging Clean Water Act determinations. Prior to that ruling, landowners were unable to legally challenge determinations.

Until this month, the Sacketts continued to be subject to an administrative compliance order (ACO) requiring them to come into compliance or face fines of up to $75,000 per day.

In a March 13 letter from EPA's Susan Parker Bodine, assistant administrator for enforcement and compliance assurance, the agency stated it was withdrawing the compliance order from 2008. The letter stated EPA had decided several years ago to no longer enforce the ACO against the Sacketts.

"Given the passage of time and the fact that the EPA's enforcement case is not active, the EPA is withdrawing the ACO. Under these circumstances, the EPA does not intend to issue a similar order to you in the future for this site," Bodine wrote.

The couple's attorney said there continues to be a concern about whether the plaintiffs are free to build on the property, even after a 12-year court battle. Essentially, EPA's wetlands determination remains in effect.

EPA said in a statement to DTN the agency believes the case is closed.

"In 2008, EPA issued an administrative compliance order to the Sacketts that directed them to remove fill material from their property and restore the site," the agency said.

"EPA has withdrawn that order and made it clear that the EPA does not intend to issue a similar order to the Sacketts in the future for this site. The reasons for withdrawing the administrative compliance order are set forth in the U.S. motion to dismiss. As stated in the motion, EPA believes this case is moot."

The attorney for the Sacketts said the couple remains on guard about the future use of the property.

"While the compliance order is withdrawn, it's not clear whether the Sacketts can build anything without permission from the EPA," Pacific Legal Foundation senior attorney Tony Francois said in a press statement.

"The EPA's determination that the Sacketts' vacant lot is a federally regulated wetland appears to remain in effect. We will ask the court of appeals to resolve that question in the Sacketts' favor if EPA won't clarify it. Otherwise, the Sacketts remain under the threat of future enforcement action or a citizen suit if they proceed to build on the lot."

CASE BACKGROUND

Under the Supreme Court case, Sackett v. EPA, the high court ruled EPA cannot threaten property owners with thousands of dollars in fines unless landowners have a chance to contest agency wetlands determinations.

Landowners have often learned about EPA wetland determinations by mail, with little chance to challenge those decisions.

The Sacketts were told by EPA and the U.S. Court of Appeals for the Ninth Circuit in San Francisco they could not get direct court review of EPA's claim that a two-thirds-of-an-acre parcel on their land is wetlands and that they must follow an EPA compliance order.

The American Farm Bureau Federation filed amicus briefs both in support of the Sacketts' petition to the court to review the case and on the merits of the case after the Supreme Court accepted the case.

In writing the opinion for the unanimous court, the late Justice Antonin Scalia said, "We conclude that the compliance order in this case is final agency action for which there is no adequate remedy other than APA (Administrative Procedure Act) review, and that the Clean Water Act does not preclude that review."

In his opinion, Justice Samuel Alito lashed out at the Clean Water Act.

"The reach of the Clean Water Act is notoriously unclear," he wrote. "Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the act, and according to the federal government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency's mercy."

Yet, the Ninth Circuit Court of Appeals later ruled against the Sacketts in their appeal challenging whether EPA ever proved there are wetlands on their property.

LETTER NOTIFICATIONS

EPA usually notifies farmers and other landowners by letter, warning them to either repair damage to wetlands or face thousands of dollars in fines for violations.

In many cases, orders were issued even without the opportunity for landowners to challenge EPA wetland determinations.

The Sacketts bought a small parcel in 2005 with the intent to build a home.

They obtained a county permit to build, but EPA claimed the property is wetlands and ordered the couple to return the land to what EPA said was its original state or pay penalties -- all without the ability to challenge EPA's wetland ruling.

The Sacketts found nothing in the paperwork connected with the permitting process indicating that their property was considered a wetland, they said. In addition, there were houses on land surrounding the Sackett lot, with no known EPA actions on those properties.

The Sacketts wanted to contest EPA's claim, but the Ninth Circuit Court of Appeals ruled the couple would first have to go through a years-long wetland permit process that could cost some 12 times the value of the land.

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @toddneeleyDTN

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