WEST VIRGINIA RECORD

CHARLESTON -- A developer is suing the U.S. Environmental Protection Agency, claiming its regulators are improperly applying the Clean Water Act to land he wants to develop.

Ron Foster claims the EPA is saying a piece of property in Wood County at Neal Run Crossing near Lubeck is subject to Clean Water Act regulation. Foster Farms LLC disagrees.

In the federal lawsuit filed May 21 in Charleston, Foster cites the 2006 U.S. Supreme Court opinion in Rapanos vs. United States that clarified what waters were subject to the Clean Water Act.

The complaint states that the EPA and Administrator Gina McCarthy "after determining that property owned by Plaintiffs is allegedly subject to the CWA and alleging that Mr. Foster was responsible for discharging fill into unnamed tributaries of Neal Run" issued compliance orders to Foster Farms.

"The compliance order subjects plaintiffs to civil penalties for failure to comply with the order and was issued without providing plaintiffs an opportunity to appeal, be heard by an impartial decision maker and to contest defendants' findings," the complaint states.

"The property does not substantially affect the physical, chemical, or biological integrity of Neal Run or the Little Kanawha River, nor does a visible bed arid bank connect the fill areas on the property with Neal Run and, therefore, the fill areas on the property subject to the compliance order are not subject to the CWA."

The plaintiffs -- Foster, Foster Farms and Marketing & Planning Specialists LP, which actually owns about half of the land in question -- seek an injunction enjoining the EPA from enforcing the compliance order without first providing plaintiffs an administrative hearing and appeal.

"The plaintiffs further seek a declaration from this court that enforcement of the order without providing him such a hearing violates his procedural and substantive due process rights," the complaint states.

In 2012, the EPA issued a compliance order to Foster Farms 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 plaintiffs say the EPA used a private consultant's preliminary opinion in the ruling, but that the consultant later said “final determination concluded that the area at issue was not in fact jurisdictional” after applying the Rapanos standard.

“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.

Earlier this month, Foster says the EPA referred the case to the U.S. Department of Justice for civil prosecution and said it was recommending a $414,830 civil penalty against them as well as other possible fines.

“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 states.

The plaintiffs seek an injunction declaring 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 not allow the enforcement of the compliance order and civil penalties pending the outcome of an appeal.

The plaintiffs also want an administrative appeal as well as attorney fees, court costs and other relief.

The plaintiffs are being represented by John C. Wilkinson Jr. and James. S. Crockett Jr. of the Charleston office of Spilman Thomas & Battle.

U.S. District Court case number 2:14-cv-16744