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Clean Water Act Clarity Urged by U.S. Supreme Court

Supreme Court Pushes Congress On Clean Water As Confusion Reigns
The Clean Water Act, which became law in 1972, gives the federal government control over “waters of the United States,” a phrase that has been fought over for four decades. Photo: Ken Wells/Bloomberg

March 22 (Bloomberg) -- The U.S. Supreme Court tossed the “notoriously unclear” Clean Water Act to Congress and the Environmental Protection Agency to untangle, as it curbed the regulator’s ability to enforce the law.

The justices unanimously ruled yesterday that the agency had to allow an Idaho couple to challenge in court its restriction on building in a wetland. Justice Samuel Alito said the effect of the decision will be limited.

Allowing property owners to sue “is better than nothing, but only clarification of the reach of the Clean Water Act can rectify the underlying problem,” Alito wrote in a concurring opinion. “Real relief requires Congress to do what it should have done in the first place: provide a reasonably clear rule regarding the reach of the Clean Water Act.”

The law protecting U.S. resources, which took effect in 1972, gives the federal government control over “waters of the United States,” a phrase in dispute for four decades. For oil drillers, farmers, ranchers and home builders, the implications of the wording can be large when the EPA and Army Corps of Engineers block construction or require a costly permit.

The two agencies are close to issuing a plan that would require permits for work in wetlands or small channels that are usually dry, where the EPA’s authority is contested. A draft was issued a year ago, with the EPA and Corps saying they’re clarifying authority they already have and responding to a separate Supreme Court decision from 2006.

Business Criticism

The agencies’ plan is drawing criticism from business groups such as the American Farm Bureau, and from Republican lawmakers who say they will move to block the agencies’ actions.

“How does the administration guidance differ from the overreach that was struck down before” by the high court? Oklahoma Republican Senator James Inhofe asked EPA Administrator Lisa Jackson today at a hearing of the Environment and Public Works Committee. “We will be doing what we can to stop that” guidance, he added later.

Environmental groups back the EPA’s proposed enforcement authority, and expressed relief yesterday that the court didn’t impose new curbs on the law itself.

“The court didn’t open up the Clean Water Act to give polluters free rein,” Jon Devine, senior attorney at the Natural Resources Defense Council in Washington, said in an interview. “It left open the many avenues that exist” for EPA to implement the law, he said.

A group of 76 House Democrats sent a letter to President Barack Obama yesterday asking him to approve the EPA’s guidance.

Idaho Lake

The court fight involves a property near Priest Lake in northern Idaho. In 2007, Chantell and Michael Sackett had begun preparing the land to build a three-bedroom house when EPA officials ordered the work to halt. The agency said that the property was a wetland and ordered the Sacketts to remove piles of fill material and replant vegetation they had cleared. It threatened the couple with fines of as much as $32,500 a day.

The Sacketts said they have a constitutional right to seek judicial review of the EPA’s order. A federal appeals court said the couple had to wait until regulators went to court to enforce the administrative compliance order before they could contest it.

“That’s regulation by sledgehammer,” Sheldon Gilbert, an attorney at the National Chamber Litigation Center, said in an interview. “No matter how confident that party was of their case” they couldn’t let fines run up into the millions of dollars while waiting for EPA to go to court, he said.

In 2010, the EPA issued more than 1,300 compliance orders such as the one given to the Sacketts, and now will have to deliberate more carefully before going that route -- and be ready to go to court when it does, said Adam Kushner, an attorney at Hogan Lovells in Washington and former director of the EPA’s office of civil enforcement.

“The agency is capable of adjusting,” he said in an interview. “But there are practical resource issues here.”

The case is Sackett v. EPA, 10-1062.

To contact the reporters on this story: Greg Stohr in Washington at; Mark Drajem in Washington at

To contact the editors responsible for this story: Jon Morgan at; Steven Komarow at

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