Sackett v. Environmental Protection Agency

(Slip Opinion) OCTOBER TERM, 2011 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

SACKETT ET VIR v. ENVIRONMENTAL PROTECTION

AGENCY ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 10–1062. Argued January 9, 2012—Decided March 21, 2012

The Clean Water Act prohibits “the discharge of any pollutant by any

person,” 33 U. S. C. §1311, without a permit, into “navigable waters,”

§1344. Upon determining that a violation has occurred, the Envi-

ronmental Protection Agency (EPA) may either issue a compliance

order or initiate a civil enforcement action. §1319(a)(3). The result-

ing civil penalty may not “exceed [$37,500] per day for each viola-

tion.” §1319(d). The Government contends that the amount doubles

to $75,000 when the EPA prevails against a person who has been is-

sued a compliance order but has failed to comply.

The Sacketts, petitioners here, received a compliance order from

the EPA, which stated that their residential lot contained navigable

waters and that their construction project violated the Act. The

Sacketts sought declarative and injunctive relief in the Federal Dis-

trict Court, contending that the compliance order was “arbitrary

[and] capricious” under the Administrative Procedure Act (APA), 5

U. S. C. §706(2)(A), and that it deprived them of due process in viola-

tion of the Fifth Amendment. The District Court dismissed the

claims for want of subject-matter jurisdiction. The Ninth Circuit af-

firmed, concluding that the Clean Water Act precluded pre-

enforcement judicial review of compliance orders and that such pre-

clusion did not violate due process.

Held: The Sacketts may bring a civil action under the APA to challenge

the issuance of the EPA’s order. Pp. 4–10.

(a) The APA provides for judicial review of “final agency action for

which there is no other adequate remedy in a court.” 5 U. S. C. §704.

The compliance order here has all the hallmarks of APA finality.

Through it, the EPA “determined” “rights or obligations,” Bennett v.

2 SACKETT v. EPA

Syllabus

Spear, 520 U. S. 154, 178, requiring the Sacketts to restore their

property according to an agency-approved plan and to give the EPA

access. Also, “legal consequences . . . flow” from the order, ibid.,

which, according to the Government’s litigating position, exposes the

Sacketts to double penalties in future enforcement proceedings. The

order also severely limits their ability to obtain a permit for their fill

from the Army Corps of Engineers, see 33 U. S. C. §1344; 33 CFR

§326.3(e)(1)(iv). Further, the order’s issuance marks the “consumma-

tion” of the agency’s decisionmaking process, Bennett, supra, at 178,

for the EPA’s findings in the compliance order were not subject to

further agency review. The Sacketts also had “no other adequate

remedy in a court,” 5 U. S. C. §704. A civil action brought by the EPA

under 33 U. S. C. §1319 ordinarily provides judicial review in such

cases, but the Sacketts cannot initiate that process. And each day

they wait, they accrue additional potential liability. Applying to the

Corps of Engineers for a permit and then filing suit under the APA if

that permit is denied also does not provide an adequate remedy for

the EPA’s action. Pp. 4–6.

(b) The Clean Water Act is not a statute that “preclude[s] judicial

review” under the APA, 5 U. S. C. §701(a)(1). The APA creates a

“presumption favoring judicial review of administrative action.”

Block v. Community Nutrition Institute, 467 U. S. 340, 349. While

this presumption “may be overcome by inferences of intent drawn

from the statutory scheme as a whole,” ibid., the Government’s ar-

guments do not support an inference that the Clean Water Act’s stat-

utory scheme precludes APA review. Pp. 7–10.

622 F. 3d 1139, reversed and remanded.

SCALIA, J., delivered the opinion for a unanimous Court. GINSBURG,

J., and ALITO, J., filed concurring opinions.

Cite as: 566 U. S. ____ (2012) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash­

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 10–1062

_________________

CHANTELL SACKETT, ET VIR, PETITIONERS v. ENVI-

RONMENTAL PROTECTION AGENCY, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[March 21, 2012]

JUSTICE SCALIA delivered the opinion of the Court.

We consider whether Michael and Chantell Sackett may

bring a civil action under the Administrative Procedure

Act, 5 U. S. C. §500 et seq., to challenge the issuance by

the Environmental Protection Agency (EPA) of an admin­

istrative compliance order under §309 of the Clean Water

Act, 33 U. S. C. §1319. The order asserts that the Sack­

etts’ property is subject to the Act, and that they have

violated its provisions by placing fill material on the prop­

erty; and on this basis it directs them immediately to

restore the property pursuant to an EPA work plan.

I

The Clean Water Act prohibits, among other things, “the

discharge of any pollutant by any person,” §1311, without

a permit, into the “navigable waters,” §1344—which the

Act defines as “the waters of the United States,” §1362(7).

If the EPA determines that any person is in violation of

this restriction, the Act directs the agency either to issue

a compliance order or to initiate a civil enforcement action.

§1319(a)(3). When the EPA prevails in a civil action, the

Act provides for “a civil penalty not to exceed [$37,500] per

2 SACKETT v. EPA

Opinion of the Court

day for each violation.”1 §1319(d). And according to the

Government, when the EPA prevails against any person

who has been issued a compliance order but has failed

to comply, that amount is increased to $75,000—up to

$37,500 for the statutory violation and up to an additional

$37,500 for violating the compliance order.

The particulars of this case flow from a dispute about

the scope of “the navigable waters” subject to this en­

forcement regime. Today we consider only whether the

dispute may be brought to court by challenging the com­

pliance order—we do not resolve the dispute on the merits.

The reader will be curious, however, to know what all

the fuss is about. In United States v. Riverside Bayview

Homes, Inc., 474 U. S. 121 (1985), we upheld a regulation

that construed “the navigable waters” to include “freshwa­

ter wetlands,” id., at 124, themselves not actually naviga­

ble, that were adjacent to navigable-in-fact waters. Later,

in Solid Waste Agency of Northern Cook Cty. v. Army

Corps of Engineers, 531 U. S. 159 (2001), we held that an

abandoned sand and gravel pit, which “seasonally ponded”

but which was not adjacent to open water, id., at 164, was

not part of the navigable waters. Then most recently, in

Rapanos v. United States, 547 U. S. 715 (2006), we consid­

ered whether a wetland not adjacent to navigable-in-fact

waters fell within the scope of the Act. Our answer was

no, but no one rationale commanded a majority of the

Court. In his separate opinion, THE CHIEF JUSTICE ex­

pressed the concern that interested parties would lack

——————

1 The

original statute set a penalty cap of $25,000 per violation per

day. The Federal Civil Penalties Inflation Adjustment Act of 1990, 104

Stat. 890, note following 28 U. S. C. §2461, as amended by the Debt

Collection Improvement Act of 1996, §3720E, 110 Stat. 1321–373, note

following 28 U. S. C. §2461, p. 1315 (Amendment), authorizes the EPA

to adjust that maximum penalty for inflation. On the basis of that

authority, the agency has raised the cap to $37,500. See 74 Fed. Reg.

626, 627 (2009).

Cite as: 566 U. S. ____ (2012) 3

Opinion of the Court

guidance “on precisely how to read Congress’ limits on the

reach of the Clean Water Act” and would be left “to feel

their way on a case-by-case basis.” Id., at 758 (concurring

opinion).

The Sacketts are interested parties feeling their way.

They own a 2⁄3-acre residential lot in Bonner County,

Idaho. Their property lies just north of Priest Lake, but is

separated from the lake by several lots containing perma­

nent structures. In preparation for constructing a house,

the Sacketts filled in part of their lot with dirt and rock.

Some months later, they received from the EPA a compli­

ance order. The order contained a number of “Findings

and Conclusions,” including the following:

“1.4 [The Sacketts’ property] contains wetlands with­

in the meaning of 33 C. F. R. §328.4(8)(b); the wet­

lands meet the criteria for jurisdictional wetlands in

the 1987 ‘Federal Manual for Identifying and Deline­

ating Jurisdictional Wetlands.’

“1.5 The Site’s wetlands are adjacent to Priest Lake

within the meaning of 33 C. F. R. §328.4(8)(c). Priest

Lake is a ‘navigable water’ within the meaning of sec­

tion 502(7) of the Act, 33 U. S. C. §1362(7), and ‘wa­

ters of the United States’ within the meaning of 40

C. F. R. §232.2.

“1.6 In April and May, 2007, at times more fully

known to [the Sacketts, they] and/or persons acting on

their behalf discharged fill material into wetlands at

the Site. [They] filled approximately one half acre.

. . . . .

“1.9 By causing such fill material to enter waters of

the United States, [the Sacketts] have engaged, and

are continuing to engage, in the ‘discharge of pollu­

tants’ from a point source within the meaning of sec­

tions 301 and 502(12) of the Act, 33 U. S. C. §§1311

and 1362(12).

. . . . .

4 SACKETT v. EPA

Opinion of the Court

“1.11 [The Sacketts’] discharge of pollutants into wa­

ters of the United States at the Site without [a] per­

mit constitutes a violation of section 301 of the Act, 33

U. S. C. §1311.” App. 19–20.

On the basis of these findings and conclusions, the order

directs the Sacketts, among other things, “immediately

[to] undertake activities to restore the Site in accordance

with [an EPA-created] Restoration Work Plan” and to “pro-

vide and/or obtain access to the Site . . . [and] access to

all records and documentation related to the conditions at

the Site . . . to EPA employees and/or their designated

representatives.” Id., at 21–22, ¶¶2.1, 2.7.

The Sacketts, who do not believe that their property is

subject to the Act, asked the EPA for a hearing, but that

request was denied. They then brought this action in the

United States District Court for the District of Idaho,

seeking declaratory and injunctive relief. Their complaint

contended that the EPA’s issuance of the compliance order

was “arbitrary [and] capricious” under the Administrative

Procedure Act (APA), 5 U. S. C. §706(2)(A), and that it

deprived them of “life, liberty, or property, without due

process of law,” in violation of the Fifth Amendment. The

District Court dismissed the claims for want of subject­

matter jurisdiction, and the United States Court of Ap­

peals for the Ninth Circuit affirmed, 622 F. 3d 1139

(2010). It concluded that the Act “preclude[s] pre­

enforcement judicial review of compliance orders,” id., at

1144, and that such preclusion does not violate the Fifth

Amendment’s due process guarantee, id., at 1147. We

granted certiorari. 564 U. S. ___ (2011).

II

The Sacketts brought suit under Chapter 7 of the APA,

which provides for judicial review of “final agency action

for which there is no other adequate remedy in a court.” 5

U. S. C. §704. We consider first whether the compliance

Cite as: 566 U. S. ____ (2012) 5

Opinion of the Court

order is final agency action. There is no doubt it is agency

action, which the APA defines as including even a “failure

to act.” §§551(13), 701(b)(2). But is it final? It has all of

the hallmarks of APA finality that our opinions establish.

Through the order, the EPA “ ‘determined’ ” “ ‘rights or ob­

ligations.’ ” Bennett v. Spear, 520 U. S. 154, 178 (1997)

(quoting Port of Boston Marine Terminal Assn. v. Re-

deriaktiebolaget Transatlantic, 400 U. S. 62, 71 (1970)).

By reason of the order, the Sacketts have the legal obliga­

tion to “restore” their property according to an agency­

approved Restoration Work Plan, and must give the EPA

access to their property and to “records and documentation

related to the conditions at the Site.” App. 22, ¶2.7. Also,

“ ‘legal consequences . . . flow’ ” from issuance of the order.

Bennett, supra, at 178 (quoting Marine Terminal, supra,

at 71). For one, according to the Government’s current

litigating position, the order exposes the Sacketts to dou­

ble penalties in a future enforcement proceeding.2 It also

severely limits the Sacketts’ ability to obtain a permit for

their fill from the Army Corps of Engineers, see 33 U. S. C.

§1344. The Corps’ regulations provide that, once the EPA

has issued a compliance order with respect to certain

property, the Corps will not process a permit application

for that property unless doing so “is clearly appropriate.”

33 CFR §326.3(e)(1)(iv) (2011).3

The issuance of the compliance order also marks the

“ ‘consummation’ ” of the agency’s decisionmaking process.

——————

2 We do not decide today that the Government’s position is correct,

but assume the consequences of the order to be what the Government

asserts.

3 The regulation provides this consequence for “enforcement litigation

that has been initiated by other Federal . . . regulatory agencies.” 33

CFR §326.3(e)(1)(iv) (2011). The Government acknowledges, however,

that EPA’s issuance of a compliance order is considered by the Corps to

fall within the provision. Brief for Respondents 31. Here again, we

take the Government at its word without affirming that it represents a

proper interpretation of the regulation.

6 SACKETT v. EPA

Opinion of the Court

Bennett, supra, at 178 (quoting Chicago & Southern Air

Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103, 113

(1948)). As the Sacketts learned when they unsuccessfully

sought a hearing, the “Findings and Conclusions” that the

compliance order contained were not subject to further

agency review. The Government resists this conclusion,

pointing to a portion of the order that invited the Sacketts

to “engage in informal discussion of the terms and re­

quirements” of the order with the EPA and to inform the

agency of “any allegations [t]herein which [they] believe[d]

to be inaccurate.” App. 22–23, ¶2.11. But that confers no

entitlement to further agency review. The mere possibil­

ity that an agency might reconsider in light of “informal

discussion” and invited contentions of inaccuracy does not

suffice to make an otherwise final agency action nonfinal.

The APA’s judicial review provision also requires that

the person seeking APA review of final agency action have

“no other adequate remedy in a court,” 5 U. S. C. §704. In

Clean Water Act enforcement cases, judicial review ordi­

narily comes by way of a civil action brought by the EPA

under 33 U. S. C. §1319. But the Sacketts cannot initiate

that process, and each day they wait for the agency to drop

the hammer, they accrue, by the Government’s telling, an

additional $75,000 in potential liability. The other possi­

ble route to judicial review—applying to the Corps of

Engineers for a permit and then filing suit under the APA

if a permit is denied—will not serve either. The remedy

for denial of action that might be sought from one agency

does not ordinarily provide an “adequate remedy” for ac-

tion already taken by another agency. The Government,

to its credit, does not seriously contend that other availa­

ble remedies alone foreclose review under §704. Instead,

the Government relies on §701(a)(1) of the APA, which

excludes APA review “to the extent that [other] statutes

preclude judicial review.” The Clean Water Act, it says, is

such a statute.

Cite as: 566 U. S. ____ (2012) 7

Opinion of the Court

III

Nothing in the Clean Water Act expressly precludes

judicial review under the APA or otherwise. But in de­

termining “[w]hether and to what extent a particular

statute precludes judicial review,” we do not look “only [to]

its express language.” Block v. Community Nutrition

Institute, 467 U. S. 340, 345 (1984). The APA, we have

said, creates a “presumption favoring judicial review of

administrative action,” but as with most presumptions,

this one “may be overcome by inferences of intent drawn

from the statutory scheme as a whole.” Id., at 349. The

Government offers several reasons why the statutory

scheme of the Clean Water Act precludes review.

The Government first points to 33 U. S. C. §1319(a)(3),

which provides that, when the EPA “finds that any person

is in violation” of certain portions of the Act, the agency

“shall issue an order requiring such person to comply

with [the Act], or . . . shall bring a civil action [to enforce

the Act].” The Government argues that, because Congress

gave the EPA the choice between a judicial proceeding and

an administrative action, it would undermine the Act to

allow judicial review of the latter. But that argument

rests on the question-begging premise that the relevant

difference between a compliance order and an enforcement

proceeding is that only the latter is subject to judicial

review. There are eminently sound reasons other than

insulation from judicial review why compliance orders

are useful. The Government itself suggests that they

“provid[e] a means of notifying recipients of potential vio­

lations and quickly resolving the issues through volun-

tary compliance.” Brief for Respondents 39. It is entirely

consistent with this function to allow judicial review when

the recipient does not choose “voluntary compliance.” The

Act does not guarantee the EPA that issuing a compliance

order will always be the most effective choice.

The Government also notes that compliance orders are

8 SACKETT v. EPA

Opinion of the Court

not self-executing, but must be enforced by the agency in

a plenary judicial action. It suggests that Congress there­

fore viewed a compliance order “as a step in the delibera­

tive process[,] . . . rather than as a coercive sanction that

itself must be subject to judicial review.” Id., at 38. But

the APA provides for judicial review of all final agency

actions, not just those that impose a self-executing sanc­

tion. And it is hard for the Government to defend its claim

that the issuance of the compliance order was just “a step

in the deliberative process” when the agency rejected the

Sacketts’ attempt to obtain a hearing and when the next

step will either be taken by the Sacketts (if they comply

with the order) or will involve judicial, not administrative,

deliberation (if the EPA brings an enforcement action). As

the text (and indeed the very name) of the compliance

order makes clear, the EPA’s “deliberation” over whether

the Sacketts are in violation of the Act is at an end; the

agency may still have to deliberate over whether it is

confident enough about this conclusion to initiate litiga­

tion, but that is a separate subject.

The Government further urges us to consider that Con­

gress expressly provided for prompt judicial review, on the

administrative record, when the EPA assesses administra­

tive penalties after a hearing, see §1319(g)(8), but did not

expressly provide for review of compliance orders. But if

the express provision of judicial review in one section of

a long and complicated statute were alone enough to over-

come the APA’s presumption of reviewability for all final

agency action, it would not be much of a presumption at

all.

The cases on which the Government relies simply are

not analogous. In Block v. Community Nutrition Institute,

supra, we held that the Agricultural Marketing Agree­

ment Act of 1937, which expressly allowed milk handlers

to obtain judicial review of milk market orders, precluded

review of milk market orders in suits brought by milk

Cite as: 566 U. S. ____ (2012) 9

Opinion of the Court

consumers. 467 U. S., at 345–348. Where a statute pro­

vides that particular agency action is reviewable at the

instance of one party, who must first exhaust administra­

tive remedies, the inference that it is not reviewable at the

instance of other parties, who are not subject to the admin­

istrative process, is strong. In United States v. Erika, Inc.,

456 U. S. 201 (1982), we held that the Medicare statute,

which expressly provided for judicial review of awards

under Part A, precluded review of awards under Part B.

Id., at 206–208. The strong parallel between the award

provisions in Part A and Part B of the Medicare statute

does not exist between the issuance of a compliance order

and the assessment of administrative penalties under the

Clean Water Act. And in United States v. Fausto, 484

U. S. 439 (1988), we held that the Civil Service Reform

Act, which expressly excluded certain “nonpreference”

employees from the statute’s review scheme, precluded

review at the instance of those employees in a separate

Claims Court action. Id., at 448–449. Here, there is no

suggestion that Congress has sought to exclude compli­

ance-order recipients from the Act’s review scheme; quite

to the contrary, the Government’s case is premised on the

notion that the Act’s primary review mechanisms are open

to the Sacketts.

Finally, the Government notes that Congress passed the

Clean Water Act in large part to respond to the inefficien­

cy of then-existing remedies for water pollution. Compli­

ance orders, as noted above, can obtain quick remediation

through voluntary compliance. The Government warns

that the EPA is less likely to use the orders if they are

subject to judicial review. That may be true—but it will be

true for all agency actions subjected to judicial review.

The APA’s presumption of judicial review is a repudiation

of the principle that efficiency of regulation conquers all.

And there is no reason to think that the Clean Water Act

was uniquely designed to enable the strong-arming of

10 SACKETT v. EPA

Opinion of the Court

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. Compliance orders will remain an effective

means of securing prompt voluntary compliance in those

many cases where there is no substantial basis to question

their validity.

* * *

We conclude that the compliance order in this case is

final agency action for which there is no adequate remedy

other than APA review, and that the Clean Water Act does

not preclude that review. We therefore reverse the judg­

ment of the Court of Appeals and remand the case for

further proceedings consistent with this opinion.

It is so ordered.

Cite as: 566 U. S. ____ (2012) 1

GINSBURG, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 10–1062

_________________

CHANTELL SACKETT, ET VIR, PETITIONERS v. ENVI-

RONMENTAL PROTECTION AGENCY, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[March 21, 2012]

JUSTICE GINSBURG, concurring.

Faced with an EPA administrative compliance order

threatening tens of thousands of dollars in civil penalties

per day, the Sacketts sued “to contest the jurisdictional

bases for the order.” Brief for Petitioners 9. “As a logical

prerequisite to the issuance of the challenged compliance

order,” the Sacketts contend, “EPA had to determine that

it has regulatory authority over [our] property.” Id., at

54–55. The Court holds that the Sacketts may immediate-

ly litigate their jurisdictional challenge in federal court. I

agree, for the Agency has ruled definitively on that ques-

tion. Whether the Sacketts could challenge not only the

EPA’s authority to regulate their land under the Clean

Water Act, but also, at this pre-enforcement stage, the

terms and conditions of the compliance order, is a question

today’s opinion does not reach out to resolve. Not raised

by the Sacketts here, the question remains open for an-

other day and case. On that understanding, I join the

Court’s opinion.

Cite as: 566 U. S. ____ (2012) 1

ALITO, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 10–1062

_________________

CHANTELL SACKETT, ET VIR, PETITIONERS v. ENVI-

RONMENTAL PROTECTION AGENCY, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[March 21, 2012]

JUSTICE ALITO, concurring.

The position taken in this case by the Federal Govern-

ment—a position that the Court now squarely rejects—

would have put the property rights of ordinary Americans

entirely at the mercy of Environmental Protection Agency

(EPA) employees.

The reach of the Clean Water Act is notoriously unclear.

Any piece of land that is wet at least part of the year is in

danger of being classified by EPA employees as wetlands

covered by the Act, and according to the Federal Govern-

ment, if property owners begin to construct a home on a

lot that the agency thinks possesses the requisite wetness,

the property owners are at the agency’s mercy. The EPA

may issue a compliance order demanding that the own-

ers cease construction, engage in expensive remedial

measures, and abandon any use of the property. If the

owners do not do the EPA’s bidding, they may be fined up

to $75,000 per day ($37,500 for violating the Act and

another $37,500 for violating the compliance order). And

if the owners want their day in court to show that their lot

does not include covered wetlands, well, as a practical

matter, that is just too bad. Until the EPA sues them,

they are blocked from access to the courts, and the EPA

may wait as long as it wants before deciding to sue. By

that time, the potential fines may easily have reached the

2 SACKETT v. EPA

ALITO, J., concurring

millions. In a nation that values due process, not to men-

tion private property, such treatment is unthinkable.

The Court’s decision provides a modest measure of re-

lief. At least, property owners like petitioners will have

the right to challenge the EPA’s jurisdictional determina-

tion under the Administrative Procedure Act. But the

combination of the uncertain reach of the Clean Water Act

and the draconian penalties imposed for the sort of viola-

tions alleged in this case still leaves most property owners

with little practical alternative but to dance to the EPA’s

tune.

Real relief requires Congress to do what it should have

done in the first place: provide a reasonably clear rule re-

garding the reach of the Clean Water Act. When Con-

gress passed the Clean Water Act in 1972, it provided

that the Act covers “the waters of the United States.” 33

U. S. C. §1362(7). But Congress did not define what it

meant by “the waters of the United States”; the phrase

was not a term of art with a known meaning; and the

words themselves are hopelessly indeterminate. Unsur-

prisingly, the EPA and the Army Corps of Engineers in-

terpreted the phrase as an essentially limitless grant of

authority. We rejected that boundless view, see Rapanos

v. United States, 547 U. S. 715, 732–739 (2006) (plurality

opinion); Solid Waste Agency of Northern Cook Cty. v.

Army Corps of Engineers, 531 U. S. 159, 167–174 (2001),

but the precise reach of the Act remains unclear. For 40

years, Congress has done nothing to resolve this critical

ambiguity, and the EPA has not seen fit to promulgate a

rule providing a clear and sufficiently limited definition of

the phrase. Instead, the agency has relied on informal

guidance. But far from providing clarity and predictabil-

ity, the agency’s latest informal guidance advises property

owners that many jurisdictional determinations concern-

ing wetlands can only be made on a case-by-case basis by

EPA field staff. See Brief for Competitive Enterprise

Cite as: 566 U. S. ____ (2012) 3

ALITO, J., concurring

Institute as Amicus Curiae 7–13.

Allowing aggrieved property owners to sue under the

Administrative Procedure Act is better than nothing, but

only clarification of the reach of the Clean Water Act can

rectify the underlying problem.