To understand just how gargantuan my concerns are about the EPA’s new Clean Water Act “waters of the US” draft rule, let’s consider two real life stories from the EPA’s files. First up, Michael and Chantell Sackett.
The Sacketts bought a 2/3rds acre residential lot in Northern Idaho. Between their lot and Priest Lake (which is surrounded by mountains) sat several lots already developed with houses. The Sackett’s lot needed some pre-construction prep work, so in April and May of 2007, they filled in about ½ acre of their lot to level it out.
Months later, the EPA sent the Sacketts a written notice that the land they filled in included “waters of the US” (wetlands related to Priest Lake) and, as such, they were in violation of the Clean Water Act for failing to obtain a permit from the US Army Corps of Engineers before disturbing their land. The notice came with a Compliance Order, which among other things included a Restoration Work Plan, drafted by the EPA, directing them as to how, and how quickly, the EPA required them to restore their land to its pre-construction condition.
Here’s where things get sticky. The Clean Water Act authorizes the EPA to impose a civil penalty against violators of up to $37,500 per day, from the day the land is first disturbed until the day it is restored. The EPA believes the amount doubles, to a maximum of $75,000 per day, when the EPA prevails against a person who has been issued a compliance order and has failed to comply. That’s $37,500 for violating a statute, and $37,500 for violating a compliance order. So the EPA puts alleged violators in this squeeze: do what we say now, and pay no more than $37,500 per day, OR don’t do what we say, and risk having to pay us $75,000 per day once we decide to sue you in court for the violation. And once the EPA issues a compliance order, the US Army Corps of Engineers won’t issue a permit for that land until the alleged violators complete the compliance order requirements.
With no good option, the Sacketts sued the EPA for violating their right to due process of law. And fortunately, in March of 2012, the US Supreme Court (9-0!) ordered the EPA to allow alleged violators the right to challenge these compliance orders when they are issued. Even the US Supreme Court had no hesitation calling this tactic “strongarming.” In my opinion, the Supreme Court chastised the EPA for using unreasonably sharp, harsh tactics in their enforcement efforts. But the EPA must have read a different opinion than I did, because they are still continuing those harsh tactics, so here’s the second, more recent story.
In 2011, Andy Johnson pulled a permit from the Wyoming State Engineer’s Office to construct a stock tank on his property in Southwestern Wyoming, by damming up Six Mile Creek as it ran across his property. At this point Six Mile Creek flowed two feet wide and about six inches deep. Not. Navigable. He dug a hole, lined the stock tank with large rocks and put a drain at the bottom. While he built the stock tank, the water flowed through the drain. When he finished, he closed the valve on the drain. Now water flows out of the stock tank like a spillway.
In October of 2012, the US Army Corps of Engineers inspected the stock tank and concluded it was a pond instead of a stock tank, and concluded that this portion of Six Mile Creek contained “waters of the US”…into which Andy discharged fill material without a permit. Six Mile Creek is a tributary of Blacks Fork Creek, which is a tributary of Green River, which is clearly navigable. But water has to successfully travel almost 100 miles to get from six-inch-deep Six Mile Creek to the navigable Green River. Undaunted, the EPA sent Andy one of their infamous compliance orders and assessments of $75,000 per day until Andy deconstructs his properly-permitted-by-Wyoming stock tank/pond.
The “which is it, a pond or a stock tank” is critical to the EPA’s success here, because stock tanks are generally exempt from the EPA’s Clean Water Act jurisdiction. Ponds aren’t.
Now, if these true stories stand as examples of how EPA intends to operate after completing its current “waters of the US” rulemaking which will greatly expand the lands subject to its jurisdiction under the Clean Water Act, and I believe they do, these stories should give pause to each and every landowner throughout the country.
A possible sanction of $37,500 per day, for every day the condition of the land is in violation, in and of itself fiercely preaches against adopting a rule that is the least bit vague or ambiguous. It argues against adopting a rule that is illogical to the reasonable person. When that possible sanction doubles to $75,000 per day, and when that possible sanction also includes the cost of restoring the land to its pre-disturbance condition before being able to even attempt to obtain a permit, well, let me state it positively. Such a rule would be generally considered insane by reasonable persons. No reasonable person would willingly submit themselves to such a rule.
We can do better than this new EPA draft rule proposal. I believe it is possible to design and write a rule that has a much better probability of bringing about on Earth the Heavenly goals listed in the Clean Water Act. You probably have some good ideas too. But this rule can’t improve without concerned citizens and businesses getting involved in the rulemaking process. Please take the time and energy to write and submit written comments. For information about filing comments, please contact me at mark@texasenvironmentallaw.com.
