Saturday, April 14, 2001

Idaho

Otter told to pay wetlands fine
His lawyer says $50,000 still too much after third violation

Betsy Z. Russell
Staff writer

BOISE _ U.S. Rep. Butch Otter has been ordered to pay a $50,000 civil penalty for violating the federal Clean Water Act by destroying wetlands near his Star, Idaho, home.

The order from Administrative Law Judge Carl Charneski reduces Otter's fine from the $80,000 proposed by the Environmental Protection Agency, which argued that the higher fine was justified for Otter's third violation of the act.

"He didn't go far enough" in reducing the fine, Otter's attorney, John Sutton, said
Friday. "I still think they're wrong. ... I think some of the facts are wrong."

Otter challenged the enforcement action against him during a hearing before Charneski last year in Boise. At the time, he first denied violating the law, then admitted it but said the proposed fine was unreasonable.

The judge dismissed Otter's argument that the fine constituted cruel and unusual punishment, noting that even the EPA's $80,000 proposed fine was less than the law allows. Congress set the maximum fine for cases like Otter's at $137,500.

Otter, a millionaire businessman and North Idaho's representative in Congress, has been converting marshland at his spread near the Boise River into landscaped ponds. He paid a penalty for violating state and federal environmental regulations for work in wetlands without a permit in 1992, and received an after-the-fact permit from the U.S. Army Corps of Engineers following his second violation in 1995. He applied for a permit for the third project, which destroyed 2.4 acres of wetlands, but never finished the application process or received a permit.

In his decision, Charneski wrote, "The evidence shows that the environmental harm was substan-tial. ... All of the wetland vegetation within this area was destroyed."

EPA enforces the Clean Water Act, while the Corps of Engineers issues permits.

Otter hired Charles Robnett to do the work in 1998, using a bulldozer and front-end loader.

"The enforcement actions taken by the corps against Otter in both 1992 and 1995 involve basically the same type of unlawful activity that is at issue in this case," Charneski wrote.

"He had twice before attempted to do work in a slough next to his house, and on each occasion he ran into problems with the corp. In each of these prior instances, the problem was identical, i.e., Otter needed a Section 404 permit to work in `waters of the United States' and he did not have one."

Nevertheless, the judge wrote that he decided to reduce Otter's fine because he believed the affable politician when Otter testified that he thought he had a permit.

"Respondents can point to no evidence to show that this belief, even though erroneous, was a reasonable one under the circumstances," Charneski wrote. But, he said, "Upon observing the demeanor of Mr. Otter, it is the opinion of this court that this respondent began the excavation work in November of 1998, because he believed that he had a ... permit. ... This belief does not excuse his negligence in proceeding with the project even though he really didn't have the permit that he thought he had."

Charneski ordered Otter to pay the $50,000 within 60 days. Unless Otter decides to appeal to the Environmental Appeals Board, the ruling is final.

Sutton said he's not sure yet whether Otter will appeal or just pay the fine.

"I just feel bad for Butch. All he's trying to do is improve his property," Sutton said.

The lawyer said Otter's plans for more landscaping work on his property have been put on hold as the case dragged on.

"I've known this man since 1966, and I'll tell you, there was not one ounce of any kind of ill will on his behalf when he was trying to put this together, none," Sutton said. "This is a man who's trying to fix his back yard."

Since becoming embroiled in the enforcement action, Otter has railed against the Environmental Protection Agency and called for cutting its authority over wetlands issues.

•Betsy Z. Russell can be reached at (208) 336-2854 or by e-mail at bzrussell@rmci.net.


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