April 28, 2009

John Cooney quoted in Nashville City Paper article on EPA investigation of Tennessee dam

2 min

According to an April 26th article in Nashville City Paper, Nashville entrepreneur Rich Roberts is under investigation by the Environmental Protection Agency (EPA) for building a dam on his property in Humphreys County, TN. Roberts built the 70-foot long dam without a permit from the Tennessee Department of Environment and Conservation (TDEC), though its unclear whether he actually needed a permit in the first place.

The TDEC called Roberts dam a violation of Tennessee's Water Quality Control Act and ordered him to pay civil penalties totaling $350,000. Roberts, his attorney, and three environmental engineering consultants hired by Roberts, all say the project was exempt from permit since the dammed lake is created by rainfall runoff, not groundwater. According to an EPA spokesperson, the case is in negotiations to reach settlement and has been referred to the U.S. Department of Justice for resolution.

John F. Cooney, a Venable partner who has written about federal environmental enforcement procedures, said the Justice Department "typically will regard a case as a more significant situation if the landowner did not obtain a permit after a government agency told the person to apply."

"The regulatory agencies and the courts have struggled for the last decade to define exactly what constitutes a 'wetland' that cannot be dammed without a permit," said Cooney, who happens to be a Nashville native. "In some cases, the answer is obvious, but in close cases it can be hard to tell."