Landowner Bill Engel, who received a tax assessment for $9,186.74, from the County of Worth for clearing his brush that the county says was in violation of the voter-approved County Brush Ordinance, has retained an attorney, Charles Speer of Kansas City. Mr. Speer, on December 22nd, sent a letter to the commission requesting relief for his client.
Mr. Speer’s letter gave a summary of the dispute. On January 19th, 2016, according to the correspondence, Mr. Engel sent a letter to the Commission requesting clarification. On March 1st, the Commissioners suggested a meeting on-site to discuss the issues. On March 16th, Mr. Engel stated that he had broken his leg and was just starting to get around, and asked the Commission to call him to set up a meeting. According to Attorney Speer’s letter, the Commission never called back. On January 12th, 2017, Mr. Engel, according to the letter, gave to the Commission a copy of a letter dated January 11th from the Army Corp of Engineers saying that some of the clearance work might require a permit from them. According to the letter, the Commission did not respond.
“Needless to say, he [Mr. Engel] was absolutely shocked when he received a tax bill for $9,186.74 for the Special Levy for a clearing less than ½ mile long,” the correspondence continues. “He was distressed when the Commissioners just laughed at him, stating that they could not reduce the levy. This is a terrible way to treat a long-time resident, landowner, and taxpayer of Worth County. There are further issues of whether he was properly notified about the exact roadway that was to be cleared.”
Mr. Speer attached other correspondence regarding the brush dispute between Mr. Engel and the County Commission.
One was a letter from Mr. Engel to the Commission that was dated January 19th, 2016 protesting the removal of brush along his road. Mr. Engel stated that on January 10th, 2016, he found some calf hoof prints on Outback Avenue on the former Dee Lynch Cattle Farm. On checking further, he said that he found the county crews in the process of removing brush from along the fence.
According to Mr. Engel’s letter, on March 16th, 2015, in response to a brush letter sent out to him and 77 other landowners, he met with commissioners regarding the brush law. During that meeting, he said, “I cannot and will not comply.” Mr. Engel, in his letter, said that the basis for the Brush Law was the safety and maintenance of the road and that cutting everything was not good for wildlife or conservation, and was not necessary for safety and maintenance. Mr. Engel said that he would work with the Commissioners on a compromise.
Mr. Engel, in his letter, stated that he had already dome some work on the road. He stated that he had burnt the area along the right-of-law, sprayed one road with weed killer, and removed some trees. On May 23rd, 2015, Mr. Engel stated that he had written a letter to the Commission that he hand-delivered to the Clerk’s office advising them of the steps he had taken. “No response from my letter was ever received, even though the Notice letter stated, ‘If the roadway does not pass inspection, you will be notified by the Commission as to what further work needs to be completed,’” said Mr. Engel in his January 2016 letter.
Roads are selected by the County Commission for brush removal based on whether it is a school or mail route along with complaints from other landowners, county crew members, and gravel delivery people. All landowners along roads targeted for brush removal get a certified letter; landowners who do not have brush along their portion do not have to do anything. Mr. Engel stated in his January 2016 letter that Outback Avenue, the road in question, was not a school bus route, ran south for four miles without another county road, and only has one occupied house. However, Commissioner Tyler Paxson said Monday that the county had gotten over 10 complaints from affected parties about the road.
Mr. Engel, in his January 2016 letter, stated that no notice was given to him to remove his cattle, that the crew did not have permission to be on his property, questioned whether Dig-Rite was called, and stated that the county may have been violation of the Clean Water Act and the Waters of the US Rule approved by the Obama Administration in 2015. “The County Crew has cut down the windbreak established by Dee Lynch as a conservation practice. These trees were planted to limit agricultural runoff. They were also planted to provide shade for cattle and as a windbreak for winter. This ‘clear cutting’ of all trees, brush, etc., may be in violation of the Clean Water Act and Waters of the US Rule.”
Commissioner Paxson said Monday that the county checked with the SCS Office before the project began, and a map that was provided showed that the area in question was outside jurisdiction for the Waters of the US Rule. County Clerk Roberta Owens said Monday that she had checked with the Army Corps of Engineers before the project and got their OK and that nothing was left in the ditch, meaning nothing was discharged.
The Clean Water Act was passed in 1972 by Congress. In 2015, the Obama Administration passed the Waters of the US Rule; however, the Trump Administration this year proposed rescinding the rule. The public comment period has expired. The purpose of the Clean Water Act is to keep pollutants out of wetlands and other waters of the US. Due to regulatory uncertainty, the Obama Administration sought to define, with the Waters of the US Rule, which bodies of water are under federal jurisdiction. However, the Trump Administration argues that the Clean Water Act solely applies to navigable waters that affect interstate commerce.
Ballotpedia defines the Waters of the US Rule as follows:
“The rule covers the following areas:
Tributaries are regulated if they "show physical features of flowing water," such as a bank or ordinary high water mark.
Waters adjacent to rivers and lakes are regulated if the water affects the chemical, physical, or biological integrity of a body of water downstream and if the EPA considers these impacts to be more than insignificant or insubstantial.
Specific regional waters such as prairie potholes, bays, coastal prairie wetlands, and similar waters fall under the rule if they are adjacent to jurisdictional tributaries that are already regulated under the Clean Water Act. Certain specialized wetlands are regulated if they significantly affect the chemical, physical, or biological integrity of other bodies of water, such as navigable-in-fact waters, interstate waters, and the territorial seas.
Ditches constructed out of streams or that function like streams are regulated under the rule. These include ditches that drain wetlands. The EPA excluded the regulation of ditches that flow only when after rain falls, ditches that are not hydrologically connected to other regulated waters, and ditches that flow more intermittently over a certain period of time.”
Mr. Engel, in his January 2016 letter, also questioned how the County figures up the cost of brush removal, questioned why he had to pay the road crew twice since he already paid with his taxes, and failed to replace two tubes on the road in question and failed to mark the spots in question. “These questions are not just mine, but of many landowners and taxpayers in the County,” Mr. Engel concluded in his January 2016 letter.
Commissioner Reggie Nonneman said Monday that one thing that prompted the passage of the Brush Law by voters was the fact that FEMA would no longer cover emergencies for roads which were difficult to access due to brush. “If our roads are impassible because people won’t cut their brush, we don’t get any FEMA money,” he said. Clerk Roberta Owens said that the county uses FEMA rates to figure the cost of labor for each piece of equipment used, such as chain saws, the wood chipper because it was better than using their own subjective standards to figure cost. The county also figures in hours of labor. Nonneman said that if Engel had given permission for the crews to leave the brush on his property, “it would have cost hundreds, not thousands.” Nonneman added, “We would have helped if he had cooperated,” noting that about 98% of landowners who get brush letters who need to remove brush participated in the county’s cost-sharing program. Commissioner Ted Findley said that the other landowners who had brush cut by the county under the Brush Law had come in and paid the taxes that the county assessed.
The letter from the Army Corps of Engineers was included with Mr. Speer’s correspondence. Dated January 11, 2017, it states that the Corps of Engineers has jurisdiction over all the waters of the US. It states that discharges of dredged or fill material requires prior authorization from the Corps under Section 404 of the Clean Water Act. However, it states that should the activities not involve discharge of dredged or fill material, a permit was not required. Activities that require permits apply to individuals, companies, corporations, federal and state agencies, and local governments planning construction activities in a stream, river, or wetland; permits are required before any work is begun. The Corps of Engineers also enforces Section 10 of the Rivers and Harbors Act of 1899, which applies to work or structure in, over, or under navigable waters.
On January 12th, Mr. Engel wrote a handwritten note to the County Commission saying that their brush removal activities were subject to the Waters of the US Regulation. He said that the area in question drains 145 acres and requested that all brush removal be in compliance with the Corp of Engineers and EPA regulations. Furthermore, Mr. Engel argued in his letter that he was not responsible for the costs for brush removal since he says the area is subject to the Waters of the US Rule.
The County Brush Law was passed in 2010 by Worth County voters. The commissioners say they have no choice but to enforce the law, since it was passed by the voters. They said at their December 11th meeting that Mr. Engel had been given ample opportunity to correct the problem; the county produced multiple certified letters signed by him of brush notices they had sent to him at the time. The commissioners said that two other landowners’ roads had been cut and taxes assessed. According to the December 18th minutes, the county plans to start cutting more brush of other landowners as time permits, starting with County Road #230 north of Grant City.
No comments:
Post a Comment