Lynden blueberry farm faces another lawsuit for clearing wetland

THE BELLINGHAM HERALDSeptember 13, 2013 

LYNDEN - The Environnmental Protection Agency has sued the owner of a Lynden blueberry farm, seeking penalties for clearing wetlands in violation of the federal Clean Water Act, according to court documents.

This is not the first time Rader Farms' Suellyn Rader, her late husband Lyle Rader, and their company Uptrail Group LLC have faced litigation for clearing and grading this wetland on their property.

In late 2005 and early 2006, the Raders cleared a 10-acre parcel for use growing blueberries. The parcel was a Category 1 wetland, the most protected of four categories under state law. The Raders did not get a permit from Whatcom County or submit a plan before clearing the wetland, both of which are requirements under the county's critical areas ordinance, which was adopted in September 2005.

The couple faced legal action from Whatcom County in 2006 and were found to have illegally cleared the land, which they were subsequently asked to restore. The two appealed, but the Washington State Court of Appeals upheld the decision in late 2011, more than a year after Lyle Rader died.

The wetland still hasn't been restored.

Under the new lawsuit, filed Aug. 29, EPA could seek several penalties, including an order to make Rader and Uptrail Group restore the site to its pre-fill condition at their own cost. The lawsuit also could seek civil fines of up to $32,500 per day for each day the wetland has been clear - or more than $86 million as of the time the case was filed.

The 10-acre site is bordered on three sides by ditches or stream channels, which the lawsuit alleges constitute U.S. waters that flow into a series of streams, which eventually connect with the Sumas River.

The lawsuit alleges the wetlands that were on the site provided flood control, filtered or trapped pollutants, transported nutrients, and maintained the chemical composition of the water and natural discharge patterns, among other functions. By clearing the land for construction of a gravel road, a ditch and clearing and filling the remainder of the site with fill or dredge material, the Raders discharged dirt, rock and sand, all of which are "pollutants" under the Clean Water Act.

The land in question is part of a larger property the Raders purchased for $3 million in early 2005. The property was previously used as wooded pasture for a dairy farm. The Raders spent more than $300,000 cleaning up environmental problems caused by the dairy operation, including two large manure lagoons, silage bunkers and buildings, according to the land-use petition filed in the previous case.

Though the Raders argued the county's critical areas ordinance was too vague and allowed for clearing of vegetation from a pasture, the appeals court upheld that the clearing was illegal, stating "even if vegetation removal is not subject to regulation, which it clearly is, the Raders have not shown that grading is not subject to regulation."

When contacted by phone, Suellyn Rader said she could not comment on the case at this time. Kent Hanson, an attorney for the Department of Justice, said the department could not comment.

Reach Samantha Wohlfeil at 360-756-2803 or samantha.wohlfeil@bellinghamherald.com.

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