Consent Orders Subject to Pre-Enforcement Review, U.S. Supreme Court Rules

On March 21, the U.S. Supreme Court ruled that consent orders issued under the Clean Water Act (CWA) can now be challenged under the Administrative Procedure Act. This gives parties receiving the consent order a new opportunity to contest a it without risking civil and criminal penalties. Before, they could simply comply or the U.S. Environmental Protection Agency (EPA) would sue to enforce compliance. Legal details still have to be worked out regarding the scope of the court’s decision.

The case — Sackett v. EPA—originated when EPA alleged that Michael and Chantell Sackett illegally filled in wetlands without a permit. While the Supreme Court’s ruling on this case speaks to the consent order process, the court is pressing Congress to clarify the reach of CWA, specifically EPA’s jurisdiction over wetlands. CWA loosely defines EPA’s jurisdiction as “waters of the United States,” but the agency and the U.S. Army Corps of Engineers released draft guidance further defining this jurisdiction in early 2011. The Office of Management and Budget is currently reviewing both this and EPA’s TMDL memo, which the agency received comments on last spring.

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