According to the Environmental Protection Agency (EPA), the Clean Water Act, as amended in 1972 dictates that discharging pollutants into navigable waters must be permitted by the government [1]. “The CWA made it unlawful to discharge any pollutant from a point source into navigable waters unless a permit was obtained. EPA’s National Pollutant Discharge Elimination System (NPDES) permit program controls discharges. Point sources are discrete conveyances such as pipes or man-made ditches.”

Apparently, 78-year-old Joe Robertson, a U.S Navy veteran based in Montana, violated this rule when he dug ponds in his own property, as one of his lawyers had articulated [2]. All the man had wanted to do was protect his fire-prone property. The CWA is a Federal law, and he was charged by the U.S government, not the State of Montana.

Robertson was sentenced to an 18-month imprisonment and also fined the sum of $130,000, deductible from his Social Security checks. He served his sentence completely, and while still on a 20-month parole, he died in March 2019 from natural causes.

PLF is making solid efforts to clear the veteran’s name

Speaking to Heritage Foundation, Attorney Tony Francois of Pacific Legal Foundation (PLF), a nonprofit property rights firm, gave full insights on Robertson’s case [2]. Robertson had been a water supplier to the Montana Fire department. He’d dug small ponds between 2013 and 2014 and installed hoses as an act of protection for his home.

According to Francois, Robertson lived in a wooded area that was prone to wildfires. A fire could strike at any time during the summer and before the firefighters would make their way down to his home, it would most likely have been licked up and scorched considerably. He wanted to be prepared and ready to hold off any fires if they ever happen to hit too close to home.

“Then, the EPA showed up and claimed that the foot-wide, foot-deep nameless channel is a federally protected “navigable water,” even though it is more than 40 miles from the nearest river that is actually navigable. EPA said Joe needed permission from the Army Corps of Engineers to dig the ponds,” PLF wrote on their website [3].

He was charged by the Federal government for “digging in proximity to navigable waters without a permit.”

During his trial, in his defense, Robertson said that he didn’t violate the Clean Water Act because his ponds weren’t close to any navigable waters. He also said that no soil was discharged into any water bodies from the digging.

  According to Francois, the closest water body to his digging site was more than 40 miles away.

Despite his defense, the Navy veteran was sentenced to 18 months in prison with a restitution fine of $130,000. Upon his death in March this year, Pacific Legal Foundation took up his case to contest the fine.

“Sadly, Joe passed away unexpectedly in March 2019, but PLF has asked that Joe’s wife Carri be allowed to stand in his shoes to finish the effort to clear his name, overturn his unconstitutional conviction, and reverse the impoverishing fine,” the organization wrote. “On April 15, 2019, The Supreme Court granted Joe’s petition, vacated the Ninth Circuit’s ruling, and ordered the Ninth Circuit confirm whether Joe’s estate can still contest the fine.

Administrative banter over federal jurisdiction

The Clean Water Rule (Waters of the United States rule), which was implemented by the Obama-led government in 2016, extended the jurisdiction of the EPA and Army Corps to virtually all areas around navigable waters throughout the country.

This executive decision made a lot of activities difficult for farmers and people who are in Robertson’s line of business. The reach of the regulatory bodies became so wide that many people weren’t aware of the fact that they were breaking laws by digging or cultivating in certain areas.

The Trump-led government has made significant efforts to limit the jurisdiction of the regulatory bodies.  Solid steps have been taken to replace Obama’s Clean Water Rule with a more flexible one, but in the end, the ball still remains in the court of the Congress.

In an email to The Daily Signal, EPA spokesman James Hewitt wrote [4]: “We cannot comment on ongoing litigation even as it pertains to actions of the previous administration. However, EPA is moving forward with a replacement WOTUS rule to ensure farmers and ranchers have more certainty when it comes to federal jurisdiction over waters.”

References

  1. Summary of the Clean Water Act. EPA. No date available.
  2. Horror Stories of EPA and Corps Overreach under the Clean Water Act. Admin. Heritage Foundationhttps://www.heritage.org/environment/event/horror-stories-epa-and-corps-overreach-under-the-clean-water-act. March 25, 2019.
  3. Montana man unjustly convicted of violating the Clean Water Act. Admin. Pacific Legal Foundation. No date available.
  4. This Veteran, Who Supplied Water to Firefighters, Went to Prison for Digging Ponds. Kevin Mooney. The Daily Signal. March 28, 2019.
  5. Official website. Pacific Legal Foundation. No date available.
  6. Waters of the United States (WOTUS) Rulemaking. EPA. No date available.
  7. Rule-Making process. EPA. No date available.
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