The EPA: Regulatory Predators of the Clean Water Act

[XLFD]

Virginia Attorney General Ken Cuccinelli accuses the Environmental Protection Agency (EPA) of trying to regulate “water itself as a pollutant,”.   He sued the EPA back in July 2012 citing a proposed plan to regulate the amount of water flowing into a Virginia watershed.  The local government, firmly of the Democratic Party, were all on board with Cuccinelli and in Federal Court last week, a judge sided against the EPA saying that the EPA could not treat storm water as a pollutant under the Clean Water Act (CWA).

The EPA claimed that it could regulate stormwater as a proxy for sediment itself, even though it had no legal authority to do so, CWA or otherwise, because nothing explicitly forbids it to do so. As Cuccinelli said, “logic like that would lead the EPA to conclude that if Congress didn’t prohibit it from invading Mexico, it had the authority to invade Mexico.”

The EPA said in November 2011 that Lois Alt and her husband needed a Clean Water Act discharge permit because rainwater on their farm could come into contact with dust, feathers or small amounts of chicken manure that strayed out of the large barns where they raise their flocks. Rainwater at their farm empties into Mudlick Run, a stream 200 yards away from the edge of the property.  Another attempt at regulating rainwater with the CWA.

The agency had warned the Alts that they could be fined up to $37,500 — per day — if they failed to apply for the permit, and another $37,500 per day if the government moved to enforce the Clean Water Act against them.

Alt told the agency in February 2012 that she intended to ignore the order. She sued the federal government in June, insisting that the threat was “arbitrary, capricious, not in accordance with the law, and in excess of the EPA’s jurisdiction and authority.”

The EPA’s threat was an attempt to define rainwater on livestock farms as a pollution “point source” under the Clean Water Act if it comes into contact with animal waste.  The EPA backed off in December, with the lawsuit, legal precedent,  and other farm groups lining up against them.  Read more here.

Chantelle and Mike Sackett, a couple from Idaho, purchased a plot of land in 2005, on which they hoped to build a modest 3-bedroom home. Prior to starting construction, they conferred with an Army Corp of Engineers official that told them a federal permit was unnecessary. With this peace of mind, the Sacketts filled their plot with rock and dirt to begin the construction starting six years ago. To their surprise, they then were visited by three agents from the EPA, who demanded that construction be halted because the land was a “wetland,” and therefore subject to protection under the CWA. They were told restore the land to its former state, which would cost them hundreds of thousands of dollars for the removal of the fill and the replanting of vegetation.

The Supreme Court came forcefully down on the side of the Sacketts in their fight against the Environmental Protection Agency, unanimously ruling last March that the couple can challenge an EPA order to stop construction of their home on property designated a wetland.  Their battle continues.  It’s not easy to get Justices Antonin Scalia and Ruth Bader Ginsberg on the same page, but the EPA's heavy-handedness managed to do so.

The agency also drew the wrath of The Washington Post, which editorialized that “The EPA Is Earning a Reputation for Abuse.” The editorial began by condemning the now-infamous remarks of now-former EPA administrator Al Armendariz, who compared his enforcement philosophy to Roman crucifixions: “They’d find the first five guys they saw and they’d crucify them. And then, you know, that town was really easy to manage for the next few years.”   Read more about the Sacketts here.

John Pozgai and his wife were freedom fighters from Hungary. They came to America and started a truck-repair garage. In 1986, with the intention of expanding his self-made business, John purchased an unofficial dump where his community had disposed of their scrap metal, old tires, and other junk. With his own time and money, John cleaned up the 30-year eyesore and planned to build a 12,500-square-foot building. John was contacted within months of buying the property by the Army Corps, who stated that wetlands were present on his land, and in 1987, the Army Corps civilly sued John to restore the property to its former condition.

The property he had bought was adjacent to a drainage ditch that was dry most of the year. However, on occasion the stream would flood part of the property because of an artificial dam created by the old tires, which he had now removed. Without these tires, the property was only a wetland in the imagination of EPA and Army Corps bureaucrats. That, however, proved enough.

John obtained a water quality permit from Pennsylvania’s Department of Environmental Resources, even though this agency revealed that John’s land was not even on the National Wetlands Inventory. The case was referred to the EPA, who then brought it to the Department of Justice. During that time, the Army Corps was still after more information on John’s permit. John was then arrested and his house was raided in search of weapons by two EPA officers; no weapons were found. His wife said it reminded her of the Soviet soldiers taking her family to never be seen again. John was sentenced to 3 years in prison and charged a maximum fee of $202,000, which holds to be the most serious punishment ever given to an “environmental violator” in the history of the United States. While he was on his deathbed, his daughter lamented that he was treated more harshly than anyone involved in the infamous Exxon Valdez oil spill.

As Pozsgai’s daughter, who also lost her job because of her father’s notoriety, said:  "At the time my father was sentenced, he was the 'worst environmental violator' in the history of the United States. No one had gone to prison for the Exxon Valdez disaster. No one went to prison when EPA noted 22,348 pounds of toxic TRI chemicals were released into the water in Essex, N.J. But John Pozsgai went to prison for Clean Water Act violations on 14 acres of an illegal dump in Morrisville, Pa."

Here is more of his story.

There are many other times when the EPA has utilized the Clean Water Act in ways it was never envisioned over 40 years ago when it was passed and signed into law.  Whether it is trying to force a lot of unnecessary expense to municipalities by regulating rainwater, harass farmers by regulating runoff of their animal's excrement, force a family into bankruptcy by declaring their private property a wetland, fining and arresting an immigrant for cleaning up his own private land, or insisting a coal-powered carferry crossing Lake Michigan get rid of its inert waste differently than all other prior carferries in a process adjudged safe over the previous 35 years under the CWA, it is all bullying pure and simple.  

With all this extra time and money they are using to try to expand their own power and importance, it is obvious to most, that they are an overstaffed and overbudgeted agency looking for reasons to keep them that way.

[Willy]

Excellent article X. It is shameful how America is turning into a Fascist State.

[XLFD]

And if you hadn't noticed, I borrowed one of your stock photos of the Badger for the last picture, suitably edited for the article.  The first three articles show a continued decline of power by the EPA since John Poszgai got singled out.  Thay may spell good news for the future of the Badger, as they reassess themselves-- or bad news if the EPA decides to go all-in to get back their mojo.

I would wager on the former though, since the EPA's master regulator, Lisa Jackson, has also just sailed into the sunset, and her replacement may tread a bit more lightly, at least at first.

[AQUAMAN]

The EPA started out in the hippie generation as a good idea to have cleaner air and water. What it started out as, and what is has turned into today, are vastly different. Kinda like it's cousin, the DNR, they believe and have the authority of GOD themselves to regulate and bully into submission anyone and any corporation that argues with their convoluted and twisted methods of regulating the quality of air and water. It's strictly become a giant of ineptness and power grabbing.

[XLFD]

Good connection, Aq, the DNR and the EPA have been pushing the limits of their regulative powers at the expense of individuals, businesses, and rights by a supra-liberal interpretation of statutes.  And it's usually not cost effective, as the agencies can count on the deep pockets of the American taxpayers for their legal representation, and a generally sympathetic court system.