Otter Admits Violations But Unrepentant Lieutenant Governor Calls $80,000 Fine For Fouling Wetlands Unfair

Idaho Lt. Gov. C.L. “Butch” Otter has filed legal documents admitting he violated the Clean Water Act by filling wetlands without a permit, but an unrepentant Otter said Friday he’ll try to change the law if he’s elected to Congress.

“I’m hopeful the judge will throw the whole thing out and say, `Hey, we’re talking about private property here,”’ Otter said. “Obviously, he’s going to have a problem doing that.”

Administrative Judge Carl Charneski is expected to rule within a month or two on Otter’s case. The Environmental Protection Agency is seeking an $80,000 fine for Otter’s third violation of the act in six years, all involving work he did on his property near the Boise River, where he’s been converting marshes to landscaped ponds.

Otter said he hadn’t read the brief filed by his attorneys, which admits that he polluted “waters of the United States” without a permit. “I’m paying these guys a lot of money, so I have to take their advice,” he said.

The legal documents also argue that the proposed $80,000 fine is excessive, citing the Constitution’s 8th Amendment guarantee against cruel and unusual punishment, among other arguments.

The brief argues that the EPA hasn’t justified such a steep fine, so no fine at all should be imposed.

The EPA, which also filed briefs, pointed to cases in Colorado and Wisconsin in 1998 in which similar violations were found, and the fines were set at $80,000 and $90,000 respectively. Both involved first-time violators.

“I didn’t just pull this $80,000 out of thin air,” said Mark Ryan, assistant regional counsel for the EPA. “We based it on current case law and the facts of this case.”

Congress set the maximum fine for cases like Otter’s at $137,500, Ryan said.

“We’re only asking for 58 percent of what Congress authorized.”

Otter had argued earlier that the water on his property isn’t related to the river a quarter-mile away, because it just bubbles up from the ground. But EPA experts testified at a June hearing that Otter’s waterways rise and fall with the river’s level, carry floodwater from the river when it’s high, and flow directly back into the river.

“I still question whether or not they’re navigable waters of the United States government, and if they are, I’m going to do my best if I make it to Congress to say that they’re not,” Otter said. “By their definition, the water in my toilet is navigable waters of the United States government.” Otter, like the violators in the two 1998 cases, has since restored the damaged wetlands to EPA’s specifications, though the agency warned that it will take years for vegetation to recover.

Wetlands filter water, provide habitat for wildlife and help control flooding by absorbing and slowly discharging water.

Otter 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 for his second violation in 1995. He applied for a permit for the 1998 work, but never finished the application process or received the permit.

Otter’s brief argues that he never intended to violate the Clean Water Act. At the time of his first violation in 1992, he didn’t know he needed a permit, it says. On the second violation in 1995, he was repairing flood damage. The brief also says Otter thought he had a permit for the project that led to the third violation in November 1998, because consultant Tim Fitzpatrick of Sandpoint told him permits had been secured.

Ryan said the November 1998 work, which included excavating and removing all vegetation from a wetland, wouldn’t have qualified for a permit.

“He never would’ve gotten a permit to do this anyway. This was not permittable,” Ryan said.

“I didn’t have the permit. Now that’s an after-the-fact admission,” Otter said Friday. “I’ve been trying to get a permit on this now for six years. I can’t even begin to tell you how much I’ve spent with the environmental engineer people, with all manner of consultants and everything else.”

Otter said he’s keeping “every scrap of paper” about his case or similar ones.

“People go through this stuff all the time. I’ve got a file six inches deep that I’m gonna use when I go to Congress,” he said.

Otter was particularly upset that he wasn’t allowed to submit testimony and evidence about other people violating wetlands rules and getting away with it. Even government agencies don’t always comply with the rules, he said. “It’s the craziest thing I’ve ever seen.”

He added, “A lot of folks sit around and say, `Well, Butch violated the law, this is the third time, by golly, he should be held accountable.’ Yes I should, and this is the process that we’re going through. But what’s reasonable?”

Idaho’s lieutenant governor since 1986 and a wealthy businessman, Otter is the Republican candidate for North Idaho’s seat in Congress. He faces Democrat Linda Pall, Libertarian Ron Wittig and Reform Party candidate Kevin Hambsch in the November election.