ELR Citation: ELR 20255
No(s). 08-35854 (9th Cir. Sep 17, 2010)

The Ninth Circuit affirmed the dismissal of landowners' lawsuit challenging an EPA compliance order requiring them to remove fill material from their property and to restore the parcel to its original condition. The order alleged that the parcel is a wetland subject to the CWA and that the landowners violated the CWA by filling in their property without first obtaining a permit. The landowners filed suit challenging the order even though EPA never filed an enforcement action in federal court. Although the CWA does not expressly provide for preenforcement judicial review of compliance orders, it is "fairly discernable" from the language and structure of the CWA that Congress intended to preclude preenforcement judicial review of administrative compliance orders issued by EPA. The lower court, therefore, properly dismissed the case for lack of subject matter jurisdiction. The court also rejected the landowners' claim that preclusion of preenforcement review violates their due process rights. Because penalties for noncompliance with a compliance order can be assessed only after EPA proves, in district court, that the defendants violated the CWA in the manner alleged in the compliance order, there is no sharp disconnect between the process given a citizen and the likely penalty that can be imposed under the CWA