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Landmark trial may affect Clean Water Act, keep vernal pool ecosystems afloat By
Katie Winchell SACRAMENTO—The
U.S. Environmental Protection Agency (EPA) is awaiting the judge’s decision in
a federal lawsuit against developer Angelo Tsakopoulos that could affect the
reach of the Clean Water Act. Tsakopoulos is accused of violating the act by
failing to obtain a mandatory Section 404 permit before deep plowing six vernal
pools and shallow plowing 29 drainages at the developer’s 8,400-acre Bowden
Ranch site in the Central Valley. Tsakopoulos counters he is the victim of a
personal vendetta by the EPA and was acting within his rights.
Vernal
pools are seasonal wetlands that provide water, food, and habitat to plants,
amphibians, migrating birds, and endangered or threatened species such as the
fairy shrimp. The pools result from a unique combination of geology and weather
found in locations like California’s Central and San Joaquin valleys, where an
impermeable subsoil layer beneath rolling hills forms natural basins that fill
up with heavy, seasonal rains. The pools exist only for a few rainy months each
year; otherwise they are bone dry. Still, EPA representatives say those few
months of aquatic habitat are vital to the rare animals that use them.
“Few
animals are adapted to the habitat. They’re drowned in the winter, baked in
the summer,” EPA Environmental Historian David Schmidt explained. “Most
vernal pools are on private land, which is why they are endangered.”
The
fact that vernal pools, or swales, are usually found on private land is the crux
of this trial. The EPA’s lead attorney for the case, Assistant Regional
Council Hugh Barroll, said vernal pools are under increasing threat as sprawl
from valley population centers like Sacramento turns former grazing lands into
farms, vineyards, and planned communities.
While
grazing is compatible with vernal pools, the farming of certain deep-rooted
crops such as wine grapes requires land preparation that can break the subsoil
hardpan layer, forever destroying the integrity of the vernal pools, according
to EPA expert witness and ecologist Lyndon Lee.
The
Clean Water Act permit process is designed to ensure aquatic ecosystems,
including vernal pools, are protected by requiring owners to manage bodies of
water on their land in an environmentally responsible manner. By circumventing
the permit process, plowing the vernal pools eight feet down, and
shallow-plowing drainages, Tsakopoulos made “hydrologic modifications” to
wetlands and drainages, Barroll said, in violation of the Clean Water Act.
“When
you [tear up] vernal pools and intermittent streams, significant downstream
damages occur,” Barroll said. “A lot of watersheds in the Central Valley
have been very badly damaged from this type of runoff.”
Tsakopoulos
feels differently. A Greek immigrant who is passionate about democracy and
freedom, he equates the EPA and its regulations with communism. “This is
almost like a vendetta, to make us an example, to break us,” he said. “We
respectfully disagree that we have done any of these things, and even if we
have, they have not proven that deep plowing swales constitutes polluting the
waters of the U.S…. The question is whether a farmer has the right to be told
by the federal government how deep to set the plow, what to plant, and when,
without getting permission from Big Brother,” he emphasized. “We believe the
American farmer has done quite well without [being told] what to do.”
In
fact, it was Tsakopoulos who first sued the EPA and the U.S. Army Corps of
Engineers (which enforces Clean Water Act permitting) over the permit dispute.
The judge found the Clean Water Act did apply to vernal pools, and therefore to
Tsakopoulos —
a decision Barroll feels was a victory for habitat protection.
The
government is seeking an $875,000 civil fine from Tsakopoulos in addition to the
mandatory restoration of damaged vernal pools and tributaries in other locations — penalties
for the 2.34 acres out of a total 66 acres of wetlands that regulators say the
developer destroyed. The agencies are indeed trying to make a costly example of
Tsakopoulos so that other farmers and builders will take the Clean Water Act
seriously. Whether the judgment in the current trial will side with the
regulators has yet to be seen.
Whatever
the ruling, the fact remains that protecting fragile aquatic ecosystems is
required by law, but can also difficult and expensive for landowners. Clean
Water Act permits take time: If Tsakopoulos had followed the permit process, it
would have delayed plowing for a year. Help in following the permit process is
provided by the Army Corps of Engineers and the EPA, but the language of the law
can be vague and confusing to laypeople. Barroll pointed out that the EPA has developed a Sacramento County habitat conservation plan for community planners and committees that addresses vernal pools. Parkway, a Sacramento-area master-planned community, is one example of a community designed to preserve vernal pools by “linking them in a system of trails that…form a continuous, natural, open space corridor for over 200 species of natural vegetation and wildlife,” according to Parkway’s literature. “Vernal pools are very amenable to this kind of planning,” Barroll said. He hopes the message people will take from the trial is that it is better to ask first and plan ahead so ecosystems and people can coexist, as they now do at Parkway. As for Tsakopoulos, the fight is not yet over, even if the U.S. district
judge decides in the government’s favor. “No matter what happens, we will be
appealing,” he declared.
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