EPA Withdraws the Sackett Administrative Order
EPA has been litigating the Sackett case since soon after EPA's first 2008 inspection of the the site. (Full disclosure, I worked on the Sackett case when I was at EPA.) EPA issued a 309(a) compliance order to the Sacketts ordering them to stop construction and restore the site. The Sacketts challenged the order in federal district court, and EPA got it dismissed on pre-enforcement review grounds. The 9th Cir. affirmed. After the Supreme Court unanimously ruled that the Sackett's were entitled to pre-enforcement review of the order, the case was sent back to the District of Idaho, where the court ruled that EPA was not arbitrary and capricious in issuing the order, and that the site was a jurisdictional wetland. The site sits adjacent to a large wetland complex, and inspection photos show standing water on the site surrounding the imported fill material. A road built on fill material separates the Sackett's site from the wetland, which drains to Lake Priest Lake, which is navigable in fact.
The Sackett's again appealed to the 9th Cir., and the EPA's response brief is due on April 1. The Pacific Legal Foundation, which represents the Sacketts, announced today that EPA is withdrawing its 309(a) order after 12 years. It's interesting that EPA would withdraw an order in a case it won below. But EPA was in a bind. If it defended its win below, it would have to make arguments at odds with its new WOTUS rule that is not yet in effect. The District Court held that site was jurisdictional under the 2008 Rapanos Guidance. But the Sacket's site would not be jurisdictional under the new WOTUS rule because there are no surface connections to Priest Lake.
The new WOTUS rule is being challenged in the courts already, with more suits to come once it is finally published in the Federal Register. EPA is not guaranteed of winning those challenges, and I think will likely lose. Then there is the election. If Trump is not re-elected, the rule will almost certainly be withdrawn by the Biden administration. This likely explains why PLF continues to fight this so hard. They may now have five votes on SCOTUS to adopt the Scalia rule.
I assume that EPA will now move to dismiss the appeal as moot since the order is withdrawn. It will be interesting to see if PLC opposes. As with all WOTUS news, stay tuned.