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Muddying the Clean Water Act

Kentucky Sens. Rand Paul and Mitch McConnell misrepresented cases involving the Environmental Protection Agency and the Clean Water Act.

  • Paul said a Mississippi man served “10 years” for “conspiracy to put dirt on his own land.” Robert Lucas was in fact convicted of numerous counts related to filling in protected wetlands on a 2,620-acre lot and selling housing units with deficient septic systems. He served about seven years.
  • In an op-ed, Paul and McConnell highlighted the case of Andy Johnson, “a farmer who built a stock pond on his eight-acre Wyoming farm” and is now threatened with fines by the EPA. Johnson actually dammed a creek considered a tributary to larger, “navigable” rivers, which requires a permit.

Paul and McConnell, along with many other lawmakers, have expressed concern that the new Clean Water Rule finalized by the EPA on May 27 extends regulation of waters to even puddles and backyard ditches. There is disagreement on what the new rule actually accomplishes; EPA has said that it clarifies existing rules on which waterways are included under the Clean Water Act, and does not drastically expand jurisdiction.

Paul, a 2016 presidential candidate, says otherwise. To illustrate what he calls “government overreach,” Paul has cited examples of prosecution related to violations of the Clean Water Act. He spoke about one such example recently at the Baltimore County Lincoln-Reagan Day Dinner in Maryland:

Paul, June 9: Over 40 years, we now define pollutants as dirt and your backyard as a navigable stream. It would be funny if we weren’t putting people in jail for it. Guy named Robert Lucas, down at the southern part of Mississippi, 10 years ago was 70 years old. He was put in prison for 10 years. He just got out. Ten years without parole. Ten years without early release. He was convicted of a RICO conspiracy [under the Racketeer Influenced and Corrupt Organizations Act]. RICO’s supposed to be something you go after gangsters for. You know what his conspiracy was? Conspiracy to put dirt on his own land. We’ve gone crazy.

Actually, Lucas went to prison for far more than simply putting “dirt on his own land.” In fact, the EPA has called this case — which spanned three administrations — “the most significant criminal wetlands case in the history of the Clean Water Act.”

SciCHECKinsertIn 1994, Lucas began buying up land in Vancleave, Mississippi, and developing a 2,620-acre plot with low-cost housing. This included filling in wetlands. According to a 2004 Justice Department press release when Lucas and two others were indicted, the Army Corps of Engineers warned Lucas in 1996 and in subsequent years that the property contained protected “wetlands and could not be developed as home sites.” Lucas received a “long record of warnings” of the public health threat he and his partners were creating by installing septic systems in saturated soil, the Justice Department said. In spite of the warnings, he, along with his daughter Robbie Lucas Wrigley and an engineer, M. E. Thompson, Jr., continued to build on the wetlands and sold homes on this property to hundreds of families.

The area is subject to seasonal flooding, and predictably, residents thus suffered from “discharge of sewage from failing septic systems onto the ground around their homes,” the Justice Department said.

As a result, in 2004 Lucas and his associates were charged with 41 counts of violating the Clean Water Act, conspiracy, and fraud; there were no RICO charges. They were convicted on 40 counts after a trial in February 2005, according to a February 2008 Justice Department monthly bulletin on environmental crimes. Lucas remained free while he appealed the verdict — but continued to sell and lease homes at the development in question, and even continued filling in wetlands there and at one other site, according to the Justice Department. Further appeals were dismissed, and Lucas went to prison.

After mangling the facts that led Lucas to jail, Paul misstated the details of that incarceration. Lucas is currently 75 years old, meaning 10 years ago he was not 70, as Paul said. He began serving his 87-month sentence in 2008, and he was released after about seven years to “residential reentry management” — a halfway house. He is scheduled to remain there until November.

Dams and Tributaries

Though it is a less obvious twisting of the facts, McConnell and Paul’s June 16 op-ed in the Lexington Herald-Leader also mischaracterized an EPA enforcement case.

McConnell and Paul, June 16: A cautionary tale can be found in the story of Andy Johnson, a farmer who built a stock pond on his eight-acre Wyoming farm. He spent hours building it and filling it with fish, ducks and geese. Now the EPA is claiming that he violated the Clean Water Act by building the pond without a permit and is threatening to fine him $75,000 — a day.

This description sounds as though Johnson simply dug a hole and added water. In fact, the Army Corps of Engineers and the EPA found that in order to create the pond, he constructed a dam on Six Mile Creek, a waterway deemed by the EPA to be a tributary of the Blacks Fork River, which in turn is a tributary of the Green River, which is a “navigable, interstate water of the United States.”

Building the dam constituted a “discharge of pollutants” into “waters of the United States,” according to the EPA and the Army Corps of Engineers, and thus required a permit that Johnson did not have, or seek. As with the Lucas case, EPA officials say that Johnson received multiple warnings before any enforcement actions were taken.

The EPA rules regarding discharging pollutants into waterways are based on a substantial body of evidence showing that water quality and flow in tributaries and wetlands can affect the water found downstream. In an extensive review of that evidence regarding connectivity of waterways, the EPA notes:

EPA, January 2015: The scientific literature unequivocally demonstrates that streams, individually or cumulatively, exert a strong influence on the integrity of downstream waters. All tributary streams, including perennial, intermittent, and ephemeral streams, are physically, chemically, and biologically connected to downstream rivers via channels and associated alluvial deposits where water and other materials are concentrated, mixed, transformed, and transported.

Editor’s Note: SciCheck is made possible by a grant from the Stanton Foundation.

– Dave Levitan