County to consider response to alleged violations

The Lincoln County Commissioners will meet Wednesday to discuss how to respond to allegations of a potential violation of the Clean Water Act, based upon the “apparent discharge of dredged or fill material into Callahan Creek” during and after the flooding incidents of December 2015, according to a letter sent to the commissioners from Environmental Protection Agency officials.

“Specifically, on Feb. 4, 2016, the Corps inspected the site and observed the discharge of dredged or fill material into approximately .9 mile and 16 acres of Callahan Creek and an unidentified amount of riparian habitat,” the letter from supervisory attorney James Eppers and director of water technical enforcement program Arturo Palomares  dated May 3, 2016, read. “These activities were apparently performed by the Lincoln County Road Department at the direction of Commissioner Larson without authorization by a permit issued by the Corps and impacted what is believed to be waters of the United States. If this is the case, the county is in violation of section 301 of the Clean Water Act, 33 USC, section 1311.”

In response to the December flooding, Larson said he ordered the road crew to dredge in Callahan Creek in order to prevent flood waters from going beyond the creek’s banks and flooding area homes.

“It was an emergency situation,” Commissioner Greg Larson said. “And I chose to act. We might have gone just a bit overboard, well, I know we did, but it’s working.”

If the agency determines the commissioners violated the Clean Water Act, there are several potential avenues available for redress.

First, the agency could issue a unilateral compliance order detailing the steps required for the county to come back into compliance with the Clean Water Act. Secondly, the county could work with the agency to negotiate an administrative order on consent, which would have the same force of law as the unilateral compliance order, but be negotiated between the agency and the county. Finally, the agency could refer the matter to the United States Department of Justice for enforcement through litigation. In addition to the measures to regain compliance, the EPA may also assess an administrative penalty against the county. Such a penalty could be challenged through an administrative adjudicative process.

Larson said he supports the idea of an administrative order on consent, although it is a decision for the entire Board of Commissioners to make.

“The Commissioners will be meeting Wednesday to discuss options including requesting to enter into an administrative order of consent with the EPA which I believe is the course of action we will choose,” he said. “We have not entered into an administrative order of consent yet.”