Vierstra argues former employee erred, canal not a navigable waterway
By CAROL RYAN DUMAS
Dairyman Mike Vierstra may appeal a guilty verdict handed to him by a federal jury for a violation of the Clean Water Act.
A jury in U.S. District Court in Boise convicted Vierstra on March 23 on one misdemeanor count of "negligently discharging a pollutant from a point source into a water of the United States without a permit in violation of the Clean Water Act." He was acquitted on two other counts.
In its complaint, the U.S. Attorney's Office alleged that Vierstra discharged waste water from his dairy operation into an irrigation canal on three different dates.
Vierstra said he is considering an appeal on the grounds he had to be "negligent" to be liable.
According to court documents, dairy waste water from the farm's irrigation system made its way into the Low Line Canal on June 1, 2009. It was for that incident that Vierstra was convicted.
The incident occurred as Vierstra was filling his dairy lagoon, diluting the wastewater with canal company water.
He said that discharge was the result of a former employee leaving an end cap off a main line that irrigates the corners of his pivot.
"EPA is accusing me of not being clairvoyant and knowing in advance an end cap was removed," he said.
Vierstra also argued the Low Line, a seasonal stream that eventually flows into the Snake River, does not constitute waters of the U.S. on the grounds that it is not a "significant nexus" with a navigable waterway. The court rejected that argument. It also rejected his argument that the Carey Act delegated the management of the Low Line to the state of Idaho, making the Clean Water Act inapplicable.
The jury acquitted Vierstra on two other criminal counts concerning discharges in March 2009 and November 2009.
"The evidence showed that the June and November discharges were caused by employee negligence, not my client's negligence," said Allen Ellis, Vierstra's attorney. "There is no evidence that Mike did anything to cause the March discharge, and there is strong evidence that the pollutant which had pooled in the canal was not from the dairy."
Sentencing in the criminal case is set for June 6.
George Breitsameter, assistant U.S. attorney, said the misdemeanor charge could carry a maximum penalty of one year in jail and a $100,000 fine.
Ellis said his client is subject to a fine, not jail time.
Under an agreement with the Environmental Protection Agency, Vierstra paid a $21,000 civil fine in 2010 for the incidents in March and June.
Brian Oakey, Idaho Agriculture Department deputy director, said the department investigated and documented the incidents and referred the case to EPA because of the dairy's history of noncompliance.
Department records show the dairy has had 89 noncompliance violations since 1996, with 10 discharge incidents, and paid $31,660 in fines. Some of the discharges were minor, off the property or on a road and not necessarily into a waterway, said Marv Patten, chief of the state's dairy bureau.