EPA facing lawsuit from GOP family in WV over stream permit case

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Ronald Foster and his wife, Nancy, hosted Vice President Mike Pence at one of their businesses, Putnam Supply, earlier this year.

In September 2010, bulldozers were moving dirt at Neal Run Crossing, along U.S. 50 west of downtown Parkersburg. Ron Foster, a businessman from nearby Putnam County, was hoping to flatten out the site for development.

But when federal inspectors visited the site that month, they said they found that Foster’s contractors had buried streams without first obtaining the permit required under the Clean Water Act.

“They placed large quantities of fill and built a sediment pond, completely obliterating the streams on the site,” the U.S. Environmental Protection Agency later said.

The EPA took enforcement action. In January 2012, EPA officials ordered Foster’s company to halt the work and clean up the damage. Two years later, in May 2014, the EPA levied a more than $400,000 fine.

Foster responded with a lawsuit. The May 2014 suit alleged that the EPA’s enforcement action was inappropriate because, according to Foster, the areas filled in didn’t really qualify as streams. Foster also alleged that federal officials violated his due-process rights.

Now, a trial in the case is fast approaching.

U.S. District Judge John Copenhaver has scheduled the bench trial to start Tuesday in federal court in Charleston.

“We’re going to get our day in court, it looks like,” Foster said earlier this week.

EPA officials argue in court documents that the case is pretty clear-cut.

“It is undisputed that plaintiffs did not obtain a permit ... for their activities on the site,” lawyers for the U.S. Justice Department, representing the EPA, wrote in one court filing. “In fact, they continued to fill the streams months after [the] EPA warned them that a permit was necessary.”

But parts of the case are focused on the meaning of “waters of the United States,” a regulatory issue that has been hotly debated for years. An Obama-era rule change that businesses say wrongly expanded the definition of streams protected by the federal law was not in place at the time the EPA took action against Foster and already is being undone by President Donald Trump.

Still, the case has drawn little attention, given that the EPA is a popular political bogeyman among West Virginia political leaders from both parties, and despite the fact that Foster and his family have joined the growing ranks of Republican officeholders in the state.

In 2016, Foster was elected to the Putnam County Commission. That same year, his wife, Nancy, was elected to the House of Delegates. The couple already had legally changed their names to reflect their politics. In 2012, he became Ronald Reagan Foster and she became Nancy Reagan Foster. Also, one of Foster’s sons, Geoff, is serving his second term in the House.

Plaintiffs in the lawsuit include Ron Foster and two of his companies, Foster Farms LLC and Marketing & Planning Specialists Limited Partnership. Geoff Foster is a partner in Marketing & Planning Specialists, according to court records.

The trial will start just a few months after Vice President Mike Pence visited another of Foster’s businesses, Foster Supply, for a private talk with area business owners. In a speech after the meeting, Pence praised Foster and his wife, joking that, “I just said a little bit ago, ‘They’re my second favorite Ron and Nancy I’ve ever met.’ ”

Pence also told the crowd that the Trump administration would make good on promises to roll back EPA regulations.

“We’re working with a new director over at the EPA, Scott Pruitt, to slash through red tape to make sure that unelected bureaucrats can’t kill your jobs and cripple your economy from the comfort of their taxpayer-funded metal desks in Washington, D.C.,” Pence said.

Foster noted the Trump moves to reverse the EPA’s course on defining protected streams, but he said the change in administration this year in Washington doesn’t seem to have his case against the agency headed toward a settlement. He said he thought some progress had been made in a court-ordered mediation session last month, but that the EPA then backed away from a framework for a possible settlement.

“They haven’t made a good effort, in my opinion, to settle this thing,” Foster said.

In his lawsuit, Foster alleges that the area in question was really a hayfield where water flowed “only in response to heavy or extended periods of rainfall or snowmelt.” Foster alleges that the EPA not only was wrong to conclude the area in question was a protected stream under the Clean Water Act, but also that it did not give him and his companies an opportunity to appeal its decision about that issue. Their lawsuit alleges that the EPA’s actions have effectively prohibited them from developing the site at all.

“The pending enforcement of the compliance order has effectively frozen the property, rendering it commercially undesirable to potential purchasers or lessees,” the lawsuit states.

Foster also alleges that the EPA played hardball with him to get him to agree to a more expansive remediation of another part of the property. The previous owners had been cited for filling in streams in that part of the property without a permit. Foster bought the entire site when the previous owner filed for bankruptcy, and his purchase set a limit on how much he had to spend on cleaning up after the previous owners.

In court filings, Foster’s attorneys also note that the EPA files contained a 2012 internet printout indicating that Foster had made a $250 campaign contribution in March 2010 to Rep. David McKinley, R-W.Va. Foster’s attorneys say this indicates the EPA had conducted “unprecedented political research” on Foster, and that the enforcement action amounted to retaliation against Foster for his political activity. Foster’s attorneys said no one at the EPA was able to explain how the printout got into the agency’s files, but that a top regional EPA official testified that political contributions weren’t relevant to EPA enforcement matters.

EPA attorneys said in court filings that the printout was not generated until enforcement actions against Foster were well underway, showing that no relationship existed between the campaign contribution information and any action by the EPA.

Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.

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