When
John Iani came to Idaho as the Environmental Protection Agency’s (EPA) administrator
for Region 10, his first experience was a meeting with then governor Dirk
Kempthorne about his agency’s presence in the Silver Valley. Iani said the meeting was confrontational and
illustrative of a common dilemma the regulated community faces when Congress
passes laws and leaves them to agencies to implement as best they can.
When
Congress doesn’t give enough direction, he said, the impact is felt by the
communities and the courts are left to resolve issues.
The
Clean Water Act (CWA) is an example of this problem. The act calls out “water bodies of the United States,”
without clearly defining them. Certainly
lakes, rivers, navigable waters would be considered such, but what about
tributaries or bodies of water not connected to others?
The
Sacketts are a couple who bought a .63-acre piece of property in a platted
subdivision, with water and sewer hookups 500 feet west of Priest Lake
in North Idaho. They obtained all the necessary building
permits, and had just started work on the house when EPA told them their land
was considered a wetland. The EPA issued
an administrative compliance order saying the Sacketts were in violation of the
CWA, and that they needed to restore the area to the way it was, and seek a
permit to build their house. They were
fined $37,500 for every day that passed where they failed to do so.
The
Sacketts filed an action in federal district court to dispute the order, and
lost. They appealed to the 9th
Circuit Court, who agreed with the district court. They then went to the Supreme Court which
came to the unanimous decision that the compliance order was a final action and
should have been open to judicial review.
The Court held that the Sackets were entitled to challenge the compliance
order in court. U.S. Supreme Court
Justice Alito wrote a concurring opinion - rejecting the position that private
property rights are at the mercy of EPA employees.
Ultimately,
Iani said, Congress needs to step up and clarify what is and is not a water
body of the US. Failing to do so will always leave the agency
scratching its heads over what to do next.
Another
example of EPA overreach is the case of Mingo Logan Coal. A project seeking to deposit fill in a water body
of the US needs to seek permission under the CWA, Section 404, sub-section C which says "the Administrator is allowed
to deny or restrict the use of any defined area as a disposal site whenever he
determines that such deposits will have an adverse impact on water or
populations.” There are no regulations,
nor process specified, but it's powerful and rarely used language, allowing the
EPA to reverse a decision about a previously approved landfill site at any
time.
In
the Mingo Logan case, the Army Corps of Engineers issued a permit for the fill
of two mines to be deposited into two river-beds. Three years later, EPA decided it would, for
the 13th time in its history, revoke the permit. A court found against the EPA, where in all 12
previous court cases the court had ruled in favor of them.
"The
EPA claimed that the status of a permit is not ever really final,” Iani said,
“but what would be the point in requesting a permit if it isn't worth the paper
it's printed on and commerce can be interrupted at any point?"
There
is another major issue before EPA right now—a mining project in Alaska. Groups opposed to the project have asked the
EPA to allow no mining in that entire area forever.
Bad
facts make bad law, Iani said. If the EPA continues to make mistakes under the
404 C clause, Congress will need to look at the CWA to clarify issues.
“I
think EPA’s authority on the CWA is being looked at very carefully by the
courts. It might be time for Congress to look at it, but that’s not likely now with
the current gridlock we see Congress.
