Putnam Co. developer suing US EPA, claiming Clean Water Act stan - Beckley, Bluefield & Lewisburg News, Weather, Sports

Putnam Co. developer suing US EPA, claiming Clean Water Act standards are being improperly applied

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A Putnam County real estate developer claims federal environmental regulators are improperly applying Clean Water Act standards to privately owned properties that have no impact on navigable waterways.

Developer Ron Foster is suing the U.S. Environmental Protection Agency, saying regulators are threatening him with enforcement actions and fines without affording him the opportunity to appeal an order he insists flouts standards established in a landmark 2006 Supreme Court decision.

He says it's an issue every American has a stake in.

It appears to me that they want to control private land, and they're doing it by expanding the CWA,” Foster said. “In my opinion, they're going beyond the scope of what the Supreme Court ruled in the Rapanos decision.”

In 2006, a divided Supreme Court voted to more narrowly define what constitutes “waters of the United States” for EPA and U.S. Army Corps of Engineers CWA permitting purposes. The majority wanted to lessen federal regulatory reach, but even they couldn't agree how much. The governing standard since then has been a marriage of two concurring, but differing, viewpoints – requiring that the waterway or wetlands in question must either have a continuous connection to traditional navigable waters or possess a clear cut, 'significant nexus' to waters that are or at one time were navigable.

The suit, filed Wednesday, May 21, in U.S. District Court in Charleston, alleges EPA is trying to claim CWA jurisdiction over property at Neal Run Crossing northeast of Lubeck in Wood County that doesn't meet either definition.

Foster said EPA and USACE want him to get a special permit “that requires tens of thousands of dollars to get. With the mitigation they're requiring, it could cost $100,000 or more.”

He said the broad definition EPA is espousing ultimately will impact “any landowner who may want to sell his property, any farmer, any small private developer who might want to do something with their property. It affects everybody.”

It's a significant issue,” he said. “When (EPA was going after) coal mines, people laid low. But now, it has the potential to effect everybody."

The suit points out that in the Rapanos decision, “the Supreme Court explained that the CWA does not provide the EPA with jurisdiction over ... wetlands that are connected to non-navigable tributaries of traditional navigable waters.” In 2011 the Fourth Circuit Court of Appeals held that the “controlling standard for CWA jurisdiction is the 'significant nexus' test,” and the following year the Supreme Court ruled that “an EPA compliance order is a 'final agency action' for which Constitutional due process requires that a right to appeal, review and challenge the compliance order must be provided...” and that nothing in the CWA precluded the right to judicial review.

Foster contends his 51.5-acre parcel is “in the vicinity of a tributary (Neal Run) which flows into the Little Kanawha River” but does not substantially affect the physical, chemical or biological integrity of either Neal Run or the Little Kanawha River, “nor does a visible bed and bank connect the fill areas on the property with Neal Run and therefore, the fill areas on the property subject to the compliance orders are not subject to the CWA.”

He purchased the property in 2009 after the previous owner, The Endurance Group, was forced into bankruptcy.

Prior to the bankruptcy proceeding, Endurance was facing enforcement action by the EPA related to the property,” the complaint stated.

EPA was aware of Endurance's bankruptcy and, several months before the agency formally intervened in the bankruptcy...the agency had decided to 'arm twist' whoever the new purchaser would be in order to help finance the remediation of the already-existing issues on the property,” it claims.

Foster said his bankruptcy court-approved purchase agreement, which EPA had participated in, stipulated that he was acquiring the parcel free and clear of any liens or claims by EPA or USACE, and stipulated that his maximum contribution to site remediation would be $50,000.

Listed as plaintiffs were Foster, Foster Farms LLC and Marketing & Planning Specialists, Limited Partnership.


The suit contends that EPA nonetheless developed a remediation plan “that violated the restrictive terms and conditions of the property deeds,” and alleges that three months after the bankruptcy court decreed that the restrictions in the purchase agreement were valid, activities on the remainder of the property “became the subject of intense EPA enforcement scrutiny.”

After 15 months of wrangling, EPA issued a compliance order to Foster Farms in January 2012 claiming that part of the property was subject to the CWA and alleging that Foster Farms and Marketing & Planning Specialists had illegally filled an unnamed tributary.

The suit claims EPA relied on a private consultant's preliminary opinion of jurisdictional status over the site in question, though after applying the Rapanos standard that same consultant's “final determination concluded that the area at issue was not in fact jurisdictional.”

EPA has arbitrarily ignored the consultant's final determination and instead relies upon the consultant's disavowed preliminary finding to support the agency's claim that the earthwork performed by Marketing & Planning constitutes an unauthorized discharge of dredged or fill material to waters of the United States,” the suit alleges.

Foster claims EPA has ignored requests for information about the appeals process, suggesting as recently as late October that its jurisdictional determination was not a “final” agency action and thus didn't require an appeal.

On May 12, however, EPA notified him that his case had been referred to the U.S. Department of Justice for civil prosecution and said it was recommending a $414,830 civil penalty against them.

EPA yet again completely ignored Mr. Foster's request for instructions on how to appeal the compliance order and instead simply notified Mr. Foster that he was being recommended to face prosecution and a penalty of almost half a million dollars,” the suit stated.

Foster Farms is asking the court to either declare the compliance order invalid and prohibit EPA from making further jurisdictional determinations in the case “due to EPA's demonstrated improper animus and violation of due process” or bar enforcement of the disputed compliance order and civil penalties pending the outcome of an administrative appeal.

It's over-reach,” Foster said. “I'm not some big coal company … I'm just someone trying to create jobs for the people of West Virginia and (generate) a little commerce. What they're claiming to be streams … the smallest of them is 1.2-ten thousandths of 1 percent in volume – I can't even measure that. Yet they're claiming it has 'significant nexus.'”

He said they'd planned to develop a hotel on the site.