RICHMOND, Virginia – A West Virginia landowner is appealing a federal court ruling he says allowed the Environmental Protection Agency to unlawfully enforce the Clean Water Act.
Ron Foster says the ruling ignores the U.S. Supreme Court decision in Sackett v. EPA and leaves him with hundreds of thousands of dollars in fines and mitigation fees.
The 2023 Sackett II ruling said only wetlands and permanent bodies of water with a “continuous surface connection” to “traditional interstate navigable waters” are covered by the Clean Water Act. The 2012 Sackett I ruling says orders issued by the EPA under the Clean Water Act are subject to the Administrative Procedure Act.
Foster
| File photo
“In Sackett II, the Supreme Court clearly defined how the federal government can enforce the Clean Water Act,” Foster’s attorney Frank Garrison said. “But the EPA has continued to ignore those guardrails and drive straight off the cliff.
“The EPA must follow federal law, not make up the rules to pursue its own agenda. Our client is fighting to see that it does.”
Foster grew up on a farm in Kentucky and earned a mechanical engineering degree. He built a property development and construction supply business that specialized in drainage and erosion control, and he once was a Putnam County Commissioner.
In 2009, Foster purchased 90 acres of commercially zoned land near Parkersburg in a bankruptcy sale. He says he saw it as a retirement investment and wanted to leave something meaningful for his children.
The previous owner had faced alleged Clean Water Act violations, so the purchase stipulated Foster would set aside tens of thousands of dollars to fix the alleged environmental issues left by the previous owner. Foster says he spent hundreds of thousands more into preparing the land for development.
In 2010, EPA inspectors entered the property without permission and said Foster had violated the Clean Water Act by filling four natural dips that occasionally channeled rain or snowmelt. Foster says the rivulets never last more than a few months and don’t connect to any recognizable body of water. The nearest traditionally navigable waterway is the Little Kanawha River, which is more than three miles away.
The following year, EPA inspectors walked onto his land (without permission) and declared they found “waters of the United States” that fell under CWA regulation. The agency accused him of filling in protected “streams” without a federal permit and slapped him with a compliance order.
The EPA’s claim, however, strains all credulity. Ron’s property contains four natural dips that intermittently channel rain or snowmelt into a hayfield where water trickles disappear. These occasional rivulets never last more than a few months and at no point do they connect to any recognizable body of water; the nearest traditionally navigable waterway is more than three miles away.
Foster also says the litigation has severely impacted his land’s value and prevented him from developing or selling it.
Eventually, U.S. District Court Judge John T. Copenhaver Jr. ruled for the EPA, saying the streams were covered by the Clean Water Act and ordered Foster to pay $800,000 in fines and mitigation costs. But soon after that, the U.S. Supreme Court ruled in Sackett and said the act only allows the EPA to regulate tributaries that would be identifiable to a reasonable person, that have flowing or standing water most days of the year and that have a continuous connection to a traditional navigable water like a river or sea.
Foster says the “streams” the EPA accused him of filling do not meet any part of that definition.
After the Sackett II ruling, Copenhaver looked at Foster’s cases again and reversed the ruling about three of the streams, but the judge said one of them was “navigable water.” Copenhaver also left most of the civil and mitigation penalties from the original order.
Foster now has appealed to the U.S. Court of Appeals for the Fourth Circuit, asking it to reverse that decision and apply the correct legal standard for identifying “waters of the United States.”
In late 2022, Foster resigned from the Putnam County Commission following a dispute about his residency. The county prosecutor said Foster was living in Tennessee and had registered to vote there while still serving as a commissioner.
Foster’s wife Nancy Reagan Foster and son Geoff Foster also served as members of the West Virginia House of Delegates. Foster and his wife both legally changed their middle names to Reagan when they married in 2012.
Foster is being represented by Garrison and Damien Schiff of Pacific Legal Foundation.
U.S. Court of Appeals for the Fourth Circuit case number 24-1998