Does the rule of law in America protect individuals or just the collective?
That question is currently being debated in federal court in Washington State. Round one went to the collective.
The federal Clean Water Act was originally passed into law in 1972 and substantially amended in 1977 and again in 1987. It concerns itself with the surface waters of the country, not the groundwater, and thus has primary regulatory authority over storm water runoff.
The public servants who drafted the legislation realized that no federal bureaucracy could ever be created that would be large enough to watch over all the ground upon which rain falls in the United States. The easy solution was to make the states responsible, and in Washington State that responsibility lies with the Department of Ecology. The state followed the federal lead and passed the buck on down to the counties and cities to actually manage, or mismanage as the case may be, the storm water of their jurisdiction. The counties and cities put together a storm water plan and use it to get a National Pollutant Discharge Elimination System (NPDES) permit which allows them to discharge pollutants into waters of the U.S. as long as they meet the guidelines of the federal law.
In 2003 Steve and Ronda Mills were excited to move into a newly purchased home in Duvall, Washington. Sitting on two secluded acres with many 150-foot-tall fir trees, the property felt like a park. All was well until December of 2006 when a windstorm hit the northwest. During the storm, 24 trees came down, landing on the house and garage, totaling the shed and also a Toyota 4-Runner SUV. The place looked like a war zone.
Following the storm, the Mills asked for and received permission from the City of Duvall to begin emergency clean-up, even though permission was not required for the emergency action. As part of the clean-up they consulted with tree specialists and determined that 19 hazardous trees that were leaning precariously in saturated soil would be taken down. That is when their nightmare began.
Someone with influence complained that trees were being cleared in a wetland. City inspectors showed up and demanded that work be stopped in the middle of clean-up saying that they had evidence that the property contained a wetland. That claim was never substantiated by the city and was subsequently refuted by a study conducted by SNR Company, a highly regarded environmental science consultant. The city proceeded to demand consultant studies, reports, mitigation plans and fees for the supposed damage to the wetland. They threatened fines and possible imprisonment of 90 days per each offense. The Mills were shocked at the thought of going to jail just for cleaning up and making their property safe to live on.
The Mills tried to work with the city to no avail. It seemed that Duvall did not want to resolve the issue without taking a part of the property. The Mills eventually filed suit against Duvall but when it became obvious that the City was more interested in wearing them down then resolving the issue equitably, they dropped the suit.
A large part of the reason the Mills lost so many trees to the windstorm is that the property is acting as a storm retention pond for surrounding uphill developments. Inundated with water, the trees couldn’t stand in the saturated soils. With approval of the city of Duval, the storm systems of the newer developments were designed to shed their run-off onto the Mills’ property. The water that is dumped on the Mills’ property is then picked back up by the city system as it exits their property. In effect, they have made the Mills’ property an unwanted part of the Duval storm sewer system.
Citizen’s Alliance for Property Rights (CAPR), a property rights group active in Washington and California, alleges that Duval’s actions are a violation of the City’s NPDES permit and violate the federal Clean Water Act and has taken the city of Duval to federal court over the issue.
Federal Judge Richard A. Jones awarded summary judgment to the city of Duval in September. He decided that the water that the City of Duval dumps onto the Mills’ property is not connected to the waters of the United States and therefore does not come under the jurisdiction of the Clean Water Act. Anyone even slightly familiar with the area knows that the water in question drains to the Snoqualmie River, one of the major rivers of western Washington and most certainly part of the waters of the U.S.
Judge Jones followed that foolish argument with an even bigger whopper. He stated in his opinion that, “The Citizen’s Alliance for Property Rights (the “Alliance”) is probably not the most likely candidate to bring a suit invoking the Clean Water Act (33 U.S.C. Ch. 26, “CWA”). The Alliance is primarily concerned with defending the property rights of its members. It also purports to be concerned about the environment, but believes that individual property owners are best suited to determine how to protect the environment. The Clean Water Act, with its wide-ranging government control of property uses that impact water quality, seems at odds with the Alliance’s purposes, to say the least.” There is no way to know if Judge Jones’ illogic is due to ideology or ignorance.
Lawyers for Duval actually argued that it is impossible for the city of Duval to violate their NPDES permit. They contend that just having the permit removes the city from any responsibility for damage caused by the water they regulate and manage.
The Mills’ case is not unique; there are thousands of similar cases throughout the United States. If Judge Jones’ decision stands, the city of Duval will have successfully sacrificed specific individuals, Steve and Ronda Mills, to the gods of the collective.
CAPR is appealing the decision. Stay tuned for further developments. More info can be found at www.capr.us/Mills.
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