EPA Can Shut Down Campground for Not Testing Water
Do bears poop in the woods?
The Seventh Circuit must assume so, because the court agreed with the Environmental Protection Agency that campsites with water sources should test their water for contaminants.
The EPA can regulate “public water systems,” and it turns out that putting “non-potable” on your spigots isn’t enough.
Hail Cottonwood Campground
The campground in question is located in Cedar Grove, Indiana, and is located directly adjacent to the Whitewater River, a river that the buzz-killing Indiana Department of Natural Resources reminds us is likely misnamed and has "no true white water."
The Ritz Family owns Cottonwood Campground and operates about 50 - 80 campsites with water access, water which the EPA ordered in 1998 needed to be tested. The EPA wanted the site tested for E.coli and nitrates, among other things, and the Ritz brothers continued to deny their authority, claiming that their campsite was not a "public water system."
Puttin' on the Ritz
If you side with the Ritz brothers and somehow don't believe that the EPA can regulate things like water quality, think again!
Under 42 USC § 300g-3(g), The Safe Drinking Water Act (SDWA), the EPA can issue an administrative order to have a property with a public water system test their water.
The SWDA also nicely defines "public water system" as a system:
- For the provision to the public of water
- For human consumption
- Through pipes or other constructed conveyances
- With at least fifteen service connections
- Or regularly serving 25 people 60 days a year
Since the Ritzs' campsite has around 50 spigots and serves at least 25 people during its open season, Cottonwood (and possibly the Roman aqueducts) is considered a public water system.
New Arguments? Nice Try
The Ritz court reminds us what every lawyer worth their salt should already know, you can't generally raise new factual or legal arguments on appeal.
The Ritz camp tried arguing on appeal that the fifty odd spigots that are adjacent to each campground was more like an extension of a single family home's water system (in this analogy the home is a cabin). The Seventh Circuit throws them a bone and calls the argument "interesting," but ultimately still waived for appeal purposes.
Do what the EPA tells you and test your water, and if you have any brilliant arguments to the contrary, advance them all at the district court level.
- Sackett v. EPA: Yes, You Can Fight the Man (FindLaw's U.S. Supreme Court Blog)
- DC Circuit Rejects EPA Good Neighbor Rule (FindLaw's D.C. Circuit Blog)
- Court Shuns 'Bad Science' Argument in EPA Global Warming Case (FindLaw's D.C. Circuit Blog)
- Will CSAPR Join the Ghosts of EPA Regulations Past? (FindLaw's D.C. Circuit Blog)
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