	Introduction

On March 21, 2012, the Supreme Court resolved a long-simmering issue of federal environmental enforcement. The issue in Sackett v. Environmental Protection Agency involved the "administrative compliance order" (ACO), a device frequently used by the Environmental Protection Agency (EPA) to enforce statutes it administers. The Court held that the Administrative Procedure Act makes available "pre-enforcement review" of ACOs under Section 404 of the Clean Water Act (CWA), which establishes the federal wetlands permitting program. Simply put, recipients of Section 404 ACOs no longer have to wait until the EPA files a civil action to enforce the ACO before they can have jurisdictional objections to the order heard by a court. In an ACO, EPA directs the recipient to comply with a specified statutory, regulatory, or permit requirement by a stated deadline, and recites the penalties that noncompliance may entail (the order itself imposes no penalties). It is often described as a quick, flexible enforcement tool that serves as an advance warning allowing the recipient to sit down with EPA to negotiate a reasonable settlement that generally avoids penalties. For all their advantages, however, ACOs sometimes come with a distinct downside from the recipient's vantage point: for ACOs issued under Section 404, the lower courts had barred pre-enforcement review. Thus, if the recipient disagreed with the facts or legal conclusions on which the ACO is based, he/she/it faced a difficult dilemma. The recipient could do nothing, challenging the order only later when EPA filed an enforcement action in court. If so and the challenge failed, the recipient faced the prospect of large civil penalties—in the case of the CWA, up to $37,500 per day for each violation of the act and an additional $37,500 per day for violating the ACO. Alternatively, the recipient could comply with the order even though disagreeing with it, at sometimes substantial cost, then apply for a permit and challenge any denial thereof (or unacceptable conditions therein) in court. In the spring of 2007, they filled in most of the lot with dirt and rock to prepare it for house construction. The ACO required the Sacketts to remove the fill material and restore the lot to its pre-fill condition, and set out a compliance schedule. The Sacketts sought a hearing to challenge the jurisdictional finding, which EPA denied. In response to Sackett , EPA will have to decide which of at least three enforcement options to pursue under Section 404, and possibly other statutes involving ACOs. Of course, under this option, EPA faces a trade-off between preparation of full administrative records and the number and timeliness of ACOs it can issue. A second option is that the agency could forego compliance orders in some instances and proceed directly to civil enforcement actions in court seeking money penalties. In sharp contrast with ACOs, however, they have no direct legal consequences. Thus, the legacy of Sackett will be greater if the decision is viewed by lower courts as applying elsewhere in the CWA outside Section 404, and outside the CWA entirely. Within the Section 404 permitting program, it may be speculated whether changes will be made after Sackett in the current divvying up of enforcement responsibilities between EPA and the Corps of Engineers. Under a 1989 memorandum of agreement between the two agencies, EPA generally has responsibility for Section 404 enforcement where, as in Sackett , the landowner fails to apply for a permit—so-called "unpermitted discharges." Reviewability of Corps jurisdictional determinations.
On March 21, 2012, the Supreme Court resolved a long-simmering issue of federal environmental enforcement. The issue in Sackett v. Environmental Protection Agency involved the "administrative compliance order" (ACO), frequently used by the Environmental Protection Agency (EPA) to enforce statutes it administers. The Court held that the Administrative Procedure Act makes available "pre-enforcement review" of ACOs under Section 404 of the Clean Water Act (CWA), which establishes the federal wetlands permitting program. Recipients of Section 404 ACOs no longer have to wait, while penalties accrue, until EPA files an action to enforce the ACO before they can have jurisdictional objections to the order heard by a court.
In an ACO, EPA directs the recipient to comply with a statutory, regulatory, or permit requirement and recites the penalties that noncompliance may entail should EPA file an enforcement action in court. ACOs are often described as a quick, flexible enforcement tool that serves as an advance warning allowing the recipient to sit down with EPA to negotiate a reasonable settlement that generally avoids penalties. From the recipient's vantage point, however, there is a distinct downside: for ACOs issued under CWA Section 404, the lower courts had barred pre-enforcement review. Thus, if the recipient disagreed with the facts or legal conclusions on which the ACO was based, the recipient faced a dilemma. The recipient could do nothing, challenging the order only later when EPA brought an enforcement action. If so and the challenge failed, the recipient faced the prospect of large civil penalties—up to $75,000 per day. Or, the recipient could comply with the order at sometimes substantial cost, even though disagreeing with it, then apply for a permit later and challenge any denial thereof.
This was the dilemma faced by the petitioners in Sackett. The Sacketts filled in a lot to prepare it for house construction. EPA then claimed they should have first obtained a wetlands fill permit and so issued an ACO ordering them to restore the lot to its pre-fill condition, even if they intended at some point to apply for a permit. EPA denied the Sacketts' request for a hearing as to whether their land was a wetland covered by the CWA. The couple then sued, but the lower courts found that pre-enforcement review of ACOs issued under Section 404 was unavailable. The Supreme Court reversed unanimously, holding as described above.
Though the Sackett decision was written narrowly to apply only to ACOs under CWA Section 404, it has wider implications. First and most importantly, it may serve as precedent for establishing the availability of pre-enforcement review under other CWA sections, or outside the CWA entirely. Second, EPA would seem to have at least three enforcement options following Sackett. It may simply prepare fuller administrative records supporting each jurisdictional determination, a course involving a trade-off between ensuring the defensibility of its ACOs and the number of ACOs it can issue. Or it might forego ACOs occasionally and proceed directly to civil enforcement actions seeking money penalties, an option offering less opportunity for landowners to sit down and negotiate with the agency, avoiding penalties in many cases. Or EPA could turn increasingly to sending out nonbinding noncompliance letters. Unlike an ACO, these would have no direct legal consequences and thus likely would be deemed unreviewable.
Third, Sackett might lead to a reappraisal of the current allocation of Section 404 enforcement responsibility between EPA and the Corps of Engineers. And finally, it may prompt litigation efforts to reverse current case law under which jurisdictional determinations by the Corps under Section 404 are deemed nonfinal, hence unreviewable in the courts.