Supreme Court Victory for Construction Industry This Week on Wetlands Issue

This week, the construction industry has been hit with good news on the issue of federal jurisdiction over wetlands in the Clean Water Act. The U.S. Supreme Court, in a unanimous March 21 ruling, said that an Idaho couple could legally challenge an Environmental Protection Agency (EPA) compliance order that told them to restore wetlands on their property. The case was filed by Mike and Chantell Sackett of Idaho, who were told by EPA that they were unable to get judicial review over EPA’s designation that pieces of their land is wetlands. They were further told that if they did not obey a compliance order directing them to restore the property they had already begun developing to its original state, they would be subject to up to $37,500 a day in fines. The court determined that the jurisdictional order handed down by EPA constituted final action, and was ultimately subject to judicial review. EPA had argued that final action would have been a civil suit and fines, and those would be subject to judicial review. The court’s decision allows for landowners, developers and construction firms to challenge EPA or U.S. Army Corps of Engineers designation of land as a wetland. The court further expressed its frustration with Congress and the agencies for the lack of clarity over in determining jurisdiction. AGC will continue to join with other industry stakeholders to help bring certainty and fairness to the Clean Water Act jurisdictional issue. For more info contact Scott Berry at (703) 837-5321 or berrys@agc.org or Leah Pilconis at (703) 837-5332 or pilconisl@agc.org.