Starting in 2005, David Hamilton spent an estimated $30,000 to clean up an irrigation ditch running through his Worland, Wyoming farm. Discarded cars, broken appliances, and scattered debris were retired from their service protecting the banks from erosion. In their place, a dredge and fill project ensued, straightening out and cleaning up the ditch.
All was calm. The project was a success.
Four years later, administrative action was taken against Hamilton and Hamilton Properties and, the next year, a lawsuit was filed against him by the federal government (United States v. Hamilton). Contending that the Clean Water Act had been violated, the Environmental Protection Agency (EPA) was then entitled to fine him as much as $37,500 per day.
Enter Harriet Hageman, Hageman Law, P.C.
A lawsuit is scary. Getting sued by the federal government is downright terrifying. But, as Harriet Hageman told Northern Ag Network in a phone interview, you can fight back and you have to. “We have a government that is coming onto private land,” she says, “and suing an individual for improving the environmental situation.”
Hageman says that the EPA was angry because he did not ask for permission first. As his attorney, she says that he didn’t have to. Her argument was successful.
Permits and the Clean Water Act
Does a farmer or rancher need to file for a 404 permit when cleaning up an irrigation ditch? In this case, the EPA contended that Hamilton did.
As described on the EPA’s website, “Section 404 of the Clean Water Act (CWA) establishes a program to regulate the discharge of dredged or fill material into waters of the United States, including wetlands.” Still on the website, however, they list activities that are exempt. They include but are not limited to established farming and ranching activities, construction and maintenance of farm or stock ponds, and the construction and maintenance of irrigation ditches.
The jury agreed. Two weeks in court and 140 minutes of deliberation led to a decision in favor of David Hamilton. According to Hageman, the jury held that these “dredge or fill activities” were exempt from the 404 permitting requirements because they constituted “normal farming and ranching activities,” including upland soil and water conservation. They also concluded that “Slick Creek” (common name for irrigation ditch in question) is a man-made irrigation ditch and exempt from section 404 of the CWA.
Wetlands
With 7.7 inches of annual rainfall, most folks would call the land around Worland, Wyoming more of a desert than a wetland. However, the EPA does not agree.
The agency contended that, in doing the dredge and fill activities of this project, Hamilton filled in 8.8 acres of wetlands. Hageman says that’s not even possible. It’s the driest area in the state of Wyoming getting even less precipitation annually than Rock Springs. On top of that, this is an irrigation ditch. She outlines that, as defined within the CWA, wetlands that are established by irrigation water are not jurisdictional.
By the time the lawsuit made its way to trial, the EPA pulled back their initial allegations of filling in 8.8 acres of wetlands. One of the main reasons they started this lawsuit, their final alleged number dropped to 1.1 acres.
The National Wetlands Inventory
Maintained by U.S. Fish and Wildlife Services, the National Wetlands Inventory (NWI) creates a national database for areas that they believe could be wetlands. According to Hageman, they have people sitting in offices surveilling lands all over the country via Google Earth. If it looks like a wetlands via those photos, it’s tagged and thrown into the database. Then, when a situation like the Hamilton project comes up, the agencies use that database to form their conclusions.
Hageman says that there is no grounds truthing. It’s all about aerial photo interpretation. They can’t conclude where the source of the water is, but they can report it as a wetland.
According to Hageman, we are being surveilled all the time by the Environmental Protection Agency, U.S. Fish and Wildlife Service, and Corps of Engineers. “We’ve had a lot of controversy about the NSA,” she says, “but these agencies are doing the same thing.”
What You Can and Can’t Argue in Court
In a pre-trial ruling, it was ruled by a judge that “as a matter of law,” this irrigation ditch was a “navigable” water of the United States. He also ruled that any evidence showing the benefits of the Hamilton project could not be used in court. However, the EPA was allowed to present evidence of the harm and damage that he allegedly caused. Some of this damage, according to Hageman, was the eradication of Russian Olives. A noxious weed in Wyoming, the agency was concerned about how their removal affected song and game birds.
Hageman was also prohibited from discussing the EPA’s request that her client spend approximately $250,000 to “unstraighten” the irrigation ditch, replace the wetlands that were filled, and pay a penalty of $240,000. It was also ruled pre-trial that concerns about the quality of the federal investigation could not be discussed.
Defending Yourself in CWA Cases
This case may not be over with. The opportunity is still available for the federal government to appeal this recent decision to a higher level. Despite the unknown future for the Hamilton project, Hageman had tips for anyone that might find themselves in a similar situation:
Fines are Scare Tactics
“Don’t believe these bullies,” says Hageman. When you’re looking at fines of $37,500 per day, the court isn’t going to grant them.
Get a Jury Trial
Hageman says to request a jury trial. With a jury comes common sense. While this lawsuit had been years in the making, it took the jury barely over two hours to side with the farmer. That time span included a walk and dinner.
Hire an Attorney Versed in Water Law
Water law and the CWA are extremely complicated. Make sure you have someone on your side that knows the laws well.
While Hageman emphasized that she’s not encouraging people to go out and violate the CWA, she wants everyone to know that they do have the rights and the power to stand up to agencies like the EPA. “If we don’t fight back,” concludes Hageman, “who will?”
© Northern Ag Network 2014
Haylie Shipp
Yet another example of govermental overreach and abject tyranny committed by via an (unelected and unaccountable) administrative agency. The governmental agency administrative state must be eliminated and all remnants of it cast into the wind, never to be re-constituted or seen again.