Federal prosecutors sue Evansville-area farmers, alleging Clean Water Act violations in three counties

Federal officials allege the Schmitts violated provisions of the Clean Water Act, which among other things, requires farmers to receive permits from the U.S. Army Corps of Engineers before discharging certain pollutants – such as rock, sand, spoil and agricultural waste – into the nation’s waters.

The Clean Water Act, signed into law in the 1970s, grants Congress the authority to regulate pollution and water quality under certain conditions, primarily through the Environmental Protection Agency, which wields enforcement power.

The government's authority to regulate what are deemed "waters of the United States" and tributaries thereof traces to the Commerce Clause of the U.S. Constitution, said Toby Days, the sustainable agriculture director for the Hoosier Environmental Council. The clause grants Congress the authority to oversee the nation's navigable waterways, such as the Ohio and Wabash Rivers.

"The question is, how far upstream must we protect to maintain the physical, biological and chemical characteristics of those navigable waters?" Days told the Courier & Press. "That's been a long-debated question since the Clean Water Act was passed in 1972."

In the Schmitts' case, their agricultural operations allegedly led to the discharging of pollutants into small water channels that later connect to tributaries of the Ohio and Wabash rivers.

The Department of Justice contends that those channels and tributaries constitute waters of the United States, bringing them under the auspices of the Clean Water Act.

At what the government dubbed the “East Volkman Site,” located near 2370 E. Volkman Road in Vanderburgh County, unauthorized discharges impacted three “relatively permanent tributaries” with “at least seasonal (water) flow.”

EPA inspectors said they observed fish swimming in standing water at the site.

The channels at the East Volkman property feed into Bluegrass Creek after about a nine-mile journey south. The creek runs through the 2,532-acre Bluegrass Fish and Wildlife Area, a diverse ecosystem popular with fisherman and hunters.

Bluegrass Creek ultimately joins Pigeon Creek, which runs through Evansville and discharges into the Ohio River.

According to the government, the Schmitts or persons employed by them used “excavators, bulldozers, trucks (and) other earth-moving equipment” to discharge pollutants, including dirt, spoil, rock and sand, into the channels at the East Volkman Site.

The complaint lays out similar allegations for three other locations: A site in northern Vanderburgh County off Old Highway 57; a location in Warrick County; and a site in Gibson County near the intersection of County Road 1200 South and Posey County Line Road.

At the Gibson County property, the alleged pollution impacted tributaries of Big Creek, which later links up with the Wabash River, a 503-mile-long tributary of the Ohio River that flows through Illinois and much of Indiana.

Besides the discharging of pollutants without a permit, the government accused the Schmitts of ignoring repeated requests from the EPA for information about the four sites, itself a violation of the Clean Water Act.

The first request, issued in July 2022, allotted James and Anita Schmitt 30 days to respond. The U.S. Postal Service confirmed Anita Schmitt received the request for information on July 23, 2022, but the EPA never received a response, the complaint states.

In September 2022, the EPA issued another request for information, this time to Jason and Tara Schmitt. Again, the government claims the postal service confirmed receipt of the request, but the EPA said Jason and Tara Schmitt never responded.

Two months later, the EPA’s regional office in Chicago issued administrative orders compelling the Schmitts to respond to the information requests within 30 days.

“To date, none of the defendants has responded to EPA’s information requests or administrative orders,” the government’s attorneys wrote.

Supreme Court recently narrowed what can be regulated under Clean Water Act

In 2023, the U.S. Supreme Court issued a ruling that had been years in the making, siding with an Idaho family that filled in portions of a property not far from nearby wetlands. The EPA argued the activity constituted a violation of the Clean Water Act, but a five-justice majority of the Supreme Court sided with the family and narrowed what constituted "waters of the United States."

The case, known as Sackett v. EPA, only dealt with how wetlands may be regulated under the Clean Water Act. But attorneys say the ruling has broader implications.

"While Sackett dealt with wetlands alone, lower courts could extend the (Supreme Court's) broad reasoning based on the clear-statement rule to the other margins of Clean Water Act jurisdiction — such as non-navigable tributaries," the law firm Sidely Austin LLP wrote in an analysis.

The ruling led to diverging reactions along partisan political lines. President Joe Biden derided the decision, saying it would "take our country backwards." Sen. Marco Rubio of Florida described it as "an important check on executive overreach."

While Days said he could not comment on the Schmitts' case specifically, he noted that Sackett v. EPA had impacted regulators' broad authority to bring Clean Water Act violations against landowners.

"How far does a wetland have to be from a navigable waterway to be considered part of that ecosystem?" Days asked. "In (Sackett v. EPA), it really limited how many wetlands and tributaries are considered waters of the United States."

It is not uncommon for landowners or farmers to plead ignorance when confronted with alleged violations of the Clean Water Act, Days said. And oftentimes, property owners have a chance to explain to the EPA that they did not know permits were required to fill in portions of a small creek or stream.

"If the landowner is working with the EPA and the (U.S. Army Corps of Engineers), they would work with the landowner to get things fixed," Days said. "It's very expensive to litigate a case, so they'd rather work with the landowner and fix things, even though there might be a violation."

Lawsuit spells out five counts, seeks remediation

For the activity at the four sites, the Schmitts face four counts of “unpermitted discharge of pollutants,” a violation of the Clean Water Act. The defendants face one count of “failure to provide information” under the Clean Water Act.

The government is seeking a permanent injunction that would bar the Schmitts from “discharging or causing the discharge” of pollutants at the four sites.

Additionally, the government is seeking an order requiring the Schmitts to undertake the “complete” restoration of the properties in question at their own expense. Attorneys asked that the defendants be assessed a civil penalty for each day they violated the Clean Water Act, fines that could total millions of dollars.

In federal court, defendants typically have 30 days to respond to civil lawsuits or else a default judgment is entered in the plaintiff's favor.

In Days' view, the regulation of upstream waterways is important to Indiana as a whole, since the region relies on rivers for commerce and because much of the region's wetlands, creeks and fragile ecosystems have already been lost to industry, agricultural use or development.

"Those landscapes, they provide a lot of beneficial habitat as well as flood mitigation, purification of our waters, a recharge of our groundwater resources," Days said. "So there's a lot of lot of benefits to having those ecosystems in our state."