LINCOLN, Neb. (DTN) -- Developer and engineer Ron Foster saw potential in a 90-acre tract of West Virginia land he bought in 2009.

Seemed like a solid retirement investment to pass on to his children and grandchildren.

Shortly after the purchase, officials from the U.S. Environmental Protection Agency visited the property in Parkersburg, West Virginia, that he bought in a bankruptcy proceeding and determined the land likely featured waters of the U.S.

Time slipped away as it always does -- the land remains undeveloped.

Foster is worn out from battles with the EPA and it claims he is violating the Clean Water Act for something the previous property owner did without a permit.

Although the owner of a development company, Foster Farms LLC, invested millions of dollars in the land, the threat of large penalties and red tape stopped his dreams cold.

A federal court in West Virginia recently ruled a headwater stream that intermittently flows for four months a year and loses its features as a stream in the middle of a hay field adjacent to Foster's property, is a water of the U.S.

The ruling was made despite the stream not having a continuous connection to a navigable water, as the Supreme Court ruled was necessary in Sackett v. EPA.

"All along there was never a doubt in my mind, none of what EPA determined to be jurisdictional streams were in fact streams at all," Foster told DTN.

"During this period of time, my entire faith in the legal system in the USA was severely diminished. With the time it took EPA to finalize their claim against me -- the five years to get a temporary court ruling and another five years to get the final ruling that we could appeal -- I went from a man still in his late prime to a man in the latter years of his life."

The Supreme Court's 2023 ruling in Sackett v. EPA changed the scope of waters the federal government could regulate and perhaps Foster's fortunes.

In that ruling, https://www.dtnpf.com/…, Justice Samuel Alito wrote in the 5-4 majority opinion that the EPA had misinterpreted the Clean Water Act's reach and ruled the term significant nexus wasn't in the law.

"In sum, we hold that the CWA extends to only those 'wetlands with a continuous surface connection to bodies that are 'waters of the United States' in their own right,' so that they are 'indistinguishable' from those waters," Alito said.

"This holding compels reversal here. The wetlands on the Sacketts' property are distinguishable from any possibly covered waters."

Idaho property owners Michael and Chantell Sackett and their legal fight against the EPA were the subject of that case.

The U.S. District Court for the Southern District of West Virginia reconsidered Foster's situation last year, reversing its ruling on three of four alleged waters on his property, but leaving in place civil and mitigation penalties on one particular tract.

NOT WOTUS WITHOUT SIGNIFICANT NEXUS

Foster and his Pacific Legal Foundation attorneys, however, say with the significant nexus test no longer in effect, the remaining property in question cannot be a water of the U.S.

Had the district court correctly applied the new post-Sackett test, Foster said he believes his Clean Water Act troubles would go away.

The section of land in question is more than three miles from the nearest traditional navigable water and there is no water with a relatively permanent continuous connection to a traditional navigable water.

Foster has spent the better part of 15 years of legal wrangling and litigation that cost him hundreds of thousands of dollars on expert witnesses and attorneys' fees.

In 2014, Foster sued the EPA in the district court, arguing the agency did not follow the Administrative Procedure Act.

Foster sought a declaration that the alleged waters claimed by the feds to be present were not waters of the U.S. and wanted an injunction to halt any enforcement action -- all prior to the Sackett ruling.

After a multi-day bench trial in August 2017, the district court issued a ruling in 2019 finding him liable for violating the law on four tracts of land. The court applied the significant nexus test in the decision.

Fast forward to 2024.

Following the Sackett decision, Foster motioned the same district court to reconsider his case based on the Supreme Court ruling.

After reconsideration, the district court ruling on the one tract of ground left Foster with no choice, but to file an appeal with the U.S. Court of Appeals for the Fourth Circuit in December 2024.

Foster made the 2009 land purchase prior to EPA pursuing enforcement action against the previous owner and the bankruptcy court said Foster was not liable for any prior CWA violations committed. Foster agreed to set aside $50,000 in a trust to fund restoration work to cure the violations.

"From the very beginning it was very clear to me the EPA was acting in a retaliatory manner due to a former dispute arising out of bankruptcy court," Foster said.

"They tried to ignore a court ruling and reached an agreement with the contractor for the previous owner to relocate a stream moved on behalf of the previous owner. The problem is, if they did so it severely reduced the value of my property."

Foster insisted to the EPA and the U.S. Army Corps of Engineers that they should honor the bankruptcy court's order.

"From then on it was exceedingly clear EPA was out to get me," he said.

"They threatened criminal charges and huge fines along with checking my political contributions and taking precedence over USACE (Corps of Engineers), which cut off my option of an after-the-fact permit. Next they ran up my legal fees by dragging their feet on making any kind of formal administrative order for a long period of time."

FOSTER VINDICATED

Foster said he felt "vindicated" by the Sackett ruling believing the potential penalties and mitigation charges could go from about $1.2 million to less than $300,000.

After years of legal fees, aging and deteriorating health, Foster said the Sackett ruling renewed his hope.

"It was also extremely hard to watch my legacy and ability to leave a substantial inheritance for my kids and grandkids be significantly eroded," he said.

"A piece of property that was purchased for less than $1 million had another $2.7 million in improvements completed along with almost $800,000 in legal fees is no longer idled possibly forever. The end is finally in sight, but my age will prevent me from doing any final development."

Foster is fighting the latest district court ruling with the hopes of correcting what his attorneys said in a brief filed in the Fourth Circuit was "legal error."

"It has always been my opinion that we could not possibly lose if it reaches the Supreme Court and the Sackett ruling only reinforces that belief," Foster told DTN.

"It does not surprise me the district court didn't follow Sacket in its entirety. After 15 years-- 10 of which were in the district court awaiting resolution -- nothing surprises me."

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on social platform X @DTNeeley

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