May 9, 2011

Clean Water Act hearing

By Clean Water Act hearing

Author: Reed Hopper

On Wednesday, May 11, at 10:30 EST I will be testifying at a hearing held by the United States House of Representatives Committee on Transportation and Infrastructure, Subcommittee on Water Resources and Environment, entitled EPA Mining Policies: Assault on Appalachian Jobs Part II. An earlier hearing on the same subject was held on May 5, 2011. A video and copies of the written testimony can be seen here. A video of the May 11 hearing, along with written testimonies, will be made available here


The purpose of these hearings is explained in the Chairman’s Briefing Memo which is to receive testimony on EPA overreaching as it relates to recent EPA policy changes affecting coal mining in Appalachia. EPA has issued new "guidance" documents imposing new standards for Clean Water Act permits for coal mining. This "guidance" is inconsistent with the statute and drastically alters the procedures and discharge standards that apply to coal mining projects such that few mines are able to comply. In some cases, the EPA is imposing water quality standards that exceed even background constituent levels and the new review process is open ended allowing long delays in permit processing. This has resulted in significant job loss and energy production for the nation.

Adding insult to injury, the EPA "guidance" was promulgated without going through the formal rule-making process which insulates the policy changes from direct legal challenge. Affected parties must challenge the "guidance" on a case-by-case basis which will require years of litigation and allow the agency to apply its new standards even if a court finds the "guidance" illegal in a particular case. The EPA has even applied the new standards retroactively to revoke a permit, for the Mingo Logan Mine in Virginia, that was issued three years ago after more than ten years of environmental review, with EPA cooperation, at a cost of millions of dollars. The mine is in complete compliance with all permit conditions and both the Corps of Engineers, that issued the permit, and the State Department of Environmental Protection, that monitors water quality, objected to the EPA permit revocation.

My written testimony will document EPA overreach under the Clean Water Act showcasing a number of PLF cases, including EPA’s veto of an essential flood control project in the Yazoo Backwater Area of the Mississippi Delta. That area is often flooded affecting more than 1300 homes and damaging more than 316,000 acres of agricultural land, with an average cost of $7.7 million annually. Residents in this area were promised flooding protection 70 years ago, but the EPA is standing in the way putting lives, property and the ecosystem at risk. PLF is appealing this decision.

Another example of EPA overreaching involves Smith Farm, in Virginia. Th Boyds, who own the farm, sought approval from the Corps of Engineers to dig some drainage ditches on their property to drain excess water. Corps officials were invited on to the property to oversee the project. After five inspections, Corps officials did not observe any illegal activity. But months later, the EPA showed up a few days after heavy flooding from a hurricane and cited the Boyds for a number of alleged Clean Water Act violations. It made no difference that the Corps officials were on site during the project and never objected to any activity. The cost of defending themselves has cost the Boyds hundreds of thousands of dollars and nearly the loss of their farm. PLF is appealing these citations.

But perhaps the most nefarious use of EPA power under the Clean Water Act involves the agency’s increasing use of unilateral compliance orders to browbeat small landowners into submission without a hearing or proof of violation.

Imagine you own a small lot in a built-out subdivision. You prepare your lot to build the home you always wanted when you get a letter from the federal government directing you to cease and desist. The government claims you filled regulated wetlands without a federal permit under the Clean Water Act and you must restore the property to its original condition or risk civil and criminal penalties.

The government provides you with no evidence of your alleged violation and offers you no opportunity to challenge its jurisdiction. Instead, you are given three options: (1) you can restore your property to its original condition at great expense and pay a civil fine and never build your home; (2) you can restore your property, pay a fine, and spend an average of $250,000 just to apply for a federal permit to use your property, which you may never receive; or (3), you can ignore the government, in which case federal prosecutors will bring an enforcement action against you (at the time of their choosing) for civil penalties that could amount to thousands of dollars a day and/or criminal fines or even imprisonment.

Now imagine you insist on your right as an American citizen to have "your day in court" to prove the agency has misread the law and has no jurisdiction over your small lot, before subjecting you to severe penalties for the reasonable and ordinary use of your property, and the court says, "No! You must first have your permit application denied or subject yourself to prosecution."

This is no hypothetical. It is real for thousands of landowners across the country. PLF is representing Chantell and Michael Sackett in the U.S. Supreme Court to put an end to this practice.

The EPA’s abuse of power shows a disdain for property owners and a disregard for economic realities that is difficult to comprehend. The agency’s penchant for changing the rules at its whim is the very essence of arbitrary government. If we don’t hold agency officials accountable, we will continue to see the erosion of our individual rights and our economy.

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