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With local wetlands, EPA not the only factor

When Michael and Chantell Sackett of Priest Lake found themselves at odds with the EPA regarding the presence of jurisdictional wetlands (those protected under the federal Clean Water Act) on their property, their options were very limited. The Sacketts could either obey the EPA’s administrative compliance order and restore their property (a residential building lot) to its pre-grading, pre-construction condition no questions asked, or they could keep building their home and risk an EPA enforcement action seeking more than $75,000 per day in civil penalties. Fortunately for the rest of us, the Sacketts refused to blindly accede to the EPA’s strong-arm tactics.

At issue was the Sacketts’ development of their 0.63-acre residential lot, and the EPA’s efforts to halt that development in the name of wetlands preservation. The Sacketts disagreed with the EPA’s determination that CWA-protected wetlands existed on their property. For example, no portion of the Sacketts’ lot contained standing or flowing water. The Sacketts’ consulting engineers concluded wetlands did not exist on the property because wetlands soils and vegetation were not present. Additionally, EPA mapping of the area failed to disclose the presence of regulated wetlands, and none of the neighbors within the Sacketts’ residential subdivision were required to obtain a Section 404 dredge and fill permit in connection with the development of their lots.

Armed with this information, the Sacketts wanted to challenge the EPA’s wetlands determination. The agency refused to engage in a formal challenge process, arguing that the CWA and the federal Administrative Procedure Act (5 U.S.C. § 704) barred so-called “pre-enforcement” review. According to the EPA, the Sacketts could not seek review of its wetlands determination unless and until the agency first sued them for failure to abide by the underlying administrative compliance order. This result was less than satisfying because removing the gravel and fill imported to the lot alone would cost the Sacketts approximately $27,000 – more than the $23,000 they paid for the lot to begin with. There were also overarching civil penalties of up to $75,000 per day of non-compliance ($37,500 per day for violation of the CWA itself, and another $37,500 per day for violation of the EPA’s compliance order).

The EPA was not alone in its interpretation that the CWA and the APA barred pre-enforcement review. The U.S. Court of Appeals for the 4th, 6th, 7th and 10th Circuits historically agreed with the EPA’s position. The 9th Circuit followed suit in the Sacketts’ case after the U.S. Federal District Court, District of Idaho, ruled against their pre-enforcement review challenge.

On March 21, the U.S. Supreme Court ruled against the EPA and in the Sacketts’ favor (see Opinion No. 10-1062; 3/21/12). The Court held that EPA wetlands determinations are subject to pre-enforcement review largely because nothing in the CWA expressly prohibits pre-enforcement review, and because the APA creates a presumption favoring the review of administrative decisions rather than the opposite.

The justices took a dim view of the EPA’s position, and those of the circuit courts of appeals before them, stating: “(There is) no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review – even judicial review of the question whether the regulated party is within the EPA’s jurisdiction (in the first place).”

To be clear, the Supreme Court did not decide the substantive merits of the Sacketts’ case (i.e., whether CWA-protected wetlands do, in fact, exist on the Sackett property). However, the court’s decision is important because it provides the regulated community with the opportunity to challenge agency decisions at the beginning of the administrative process, an opportunity that did not otherwise expressly exist before.

While the Sackett decision is significant for Idahoans and the regulated community nationwide, the EPA and the Army Corps of Engineers are not the only entities Idaho landowners should consult regarding wetlands on their properties, particularly those located in the comparatively arid southern portion of the State. Chances are, if you encounter “wetlands” or flowing water on or around your property, that water is part of a widespread network of man-made irrigation facilities owned and operated by others.

In Idaho, several entities own and operate water distribution and drainage facilities, including irrigation districts, canal companies, ditch companies, lateral associations and drainage districts. Though irrigation delivery ditches are typically well defined, channelized, largely devoid of vegetation and flow only during certain months of the year, there are often more “natural”-looking exceptions to the general rule. Also, water holding and drainage facilities (such as irrigation storage and stock ponds and surface water and groundwater drainage facilities) often appear “natural,” with riparian vegetation and the presence of water throughout the year. All of these facilities, however, are the private property of others, and are protected from trespass, modification and interference by a number of civil and criminal statutes under Idaho law.

Landowners in the Idaho panhandle are not immune from this phenomenon, either. Northern Idaho also has its share of irrigation and drainage entities charged with the distribution and removal of water. Those facilities, like their southern counterparts, are equally protected under the law.

When in doubt, landowners should check not only with the EPA and the Army Corps of Engineers, but also with local irrigation and drainage entities before altering or modifying “streams” or “wetlands” located on or at the boundaries of their properties. Failure to do so could invite trouble not only with the federal government, but with local irrigation and drainage entities as well.

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Andy Waldera is a partner in the Boise office of Moffatt Thomas Barrett Rock & Fields, Chartered. His practice focuses on agricultural, water, and environmental and natural resources law. He can be reached at ajw@moffatt.com, or www.moffatt.com.

 

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