Grandfather has right to old stream crossing

Friday, June 5, 2009
Tribune photo by Clint Confehr Mandy Slivey Cash and Matt Brown of the USDA inspect a stream crossing at Farmington.

FARMINGTON - State protections for the environment and federal examinations have collided at a Marshall County man's crossing over East Rock Creek.

Results from this crash: The old English common law known as grandfather rights has resolved much of the issue. However, as might be expected there is much more to this tale of two Bubbas.

The clash started last February as a result of conflict between County Commissioner Wilford (Spider) Wentzel and County Highway Department employee Travis Whaley.

Last winter, Wentzel went to inspect a pond near East Rock Creek, the commissioner said. It was to comply with a request from a constituent who Wentzel declines to name. Whaley says he had the pond built, but has since sold it. One access to the pond is by a road that crosses the creek.

Subsequently, the Columbia Field Office of the Tennessee Department of Environment and Conservation received a complaint about the bridge over East Rock Creek and on Feb. 25, Andy Abernathy of the Division of Water Pollution Control investigated.

The stream crossing on Whaley Cemetery Road has three culvert pipes allowing flow under the road, and that's not enough for "base flow" of water and for aquatic life, according to Abernathy's notice to Whaley.

The notice alleged violations of state regulations requiring an "aquatic resource alteration general permit for the construction of minor road crossings" of waterways, Abernathy explained to Whaley in the "Notice of Violation" dated March 3.

Abernathy cited state law for Whaley and explained that civil penalties could be imposed under these circumstances, but it seemed clear that the state was more interested in receiving a plan to obtain compliance and reconstruction of the stream crossing this summer.

Whaley called the Rural Development Office of the U.S. Department of Agriculture asking for advice and help in drafting a plan on what to do about the bridge. Mandy Slivey Cash of the Lewisburg office and Matt Brown, a USDA engineer from the Murfreesboro office, visited Whaley's property in late April. Brown confirmed that he would be reviewing the situation to find a solution. Cash was facilitating the effort.

Within a month, Abernathy could report, "We are working with Travis. He has been eager to comply. He is working on a plan ... with engineers... As long as he provides a plan that's feasible and meets the state's criteria, we're happy because water quality would have been increased."

Whaley has addressed other environmental issues with the USDA's Natural Resource Conservation Service, said Abernathy who was then asked when he thought the stream crossing might be changed.

"He has to have something to me before he begins and I have agreed that it would be best to do the work this summer when the flow is lower so any sediment release would be less," Abernathy said, explaining that would avoid, or at least reduce the impact of muddy water on aquatic life down stream.

Abernathy provided such explanations just before Memorial Day.

Since then, he's accepted another job in private industry to provide environmental services to businesses.

Chad Augustine is Abernathy's former supervisor and on Thursday, Augustine indicated that discussions between TDEC's Field Office in Columbia and the USDA reveal exemptions for farmers.

Augustine deferred to Meg Lockhart, a TDEC spokeswoman who collected relevant documents, reported Whaley submitted a plan to resolve the issue, but concluded that with the USDA, TDEC has concluded that Whaley's crossing of East Rock Creek predates federal regulations enforced by the state for the U.S. Environmental Protection Agency.

The USDA "engineer established that the bank is stabile and the culvert is appropriately sized," so it's not an "on-going cause of pollution" and water flow isn't impeded, Lockhart said.

"The department agrees with that assessment," she said.

TDEC's former official from the Columbia office did find that the stream crossing didn't have a permit, but that common law resolved that and TDEC is "satisfied with the way it's panned out."

The conflict last winter that developed the chain of events with the USDA and TDEC was revealed in a letter sent to the editor by Whaley who complained that Wentzel had been trespassing on his property, accessed by Whaley Cemetery Road from the Nashville Highway (U.S. 31A) just north of where State Route 64 goes east toward Shelbyville.

Wentzel counters that he was doing his job as a commissioner and was walking on a public road, Whaley Cemetery Road, that's been treated like other roads to cemeteries in the county.

Whaley Cemetery Road is not on the Marshall County list of county roads, but it has been subject to a long-held practice by rural Tennessee counties to provide a service so funeral processions can access cemeteries.

A former employee of a nearby county highway department recalls doing such work west of here and a resolution by the Marshall County Commission approved Jan. 27, 2003 authorizes the highway superintendent "to rock, upgrade, bush-hog, etc. entrances to cemeteries and churches." The resolution notes the superintendent "is willing to assist in upkeep of these properties as time and funds will permit."

Whaley's employer, Marshall County Highway Superintendent Jerry Williams, adds that two rock quarries in the Pottsville area have donated stone for cemetery roads.

Furthermore, Williams emphasizes several times the situation surrounding Whaley's road, bridge, pond and the commissioner "has nothing to do with the Highway Department ... [but] Anybody's got a right to go to any cemetery anywhere."

Whaley said in a discussion at the highway department, "I don't have any beef with him (Wentzel) going to the cemetery. It's him going past the cemetery."

Furthermore, much of the property beyond the cemetery, and the bridge - where the pond is located - was sold a few years ago, Whaley said. He planned to have a fish farm, but his plans changed.

Wentzel's inspection of a pond for a constituent - by walking on Whaley Cemetery Road - aggravated Whaley so he went to the office of Marshall County Circuit Court Clerk Elinor Brandon Foster to get an arrest warrant charging Wentzel with trespassing.

Foster declined to issues the warrant, explaining later that she could tell Whaley was angry and that under the circumstances Whaley was trying to get a "vindictive" or "frivolous" warrant, meaning the situation indicated to her the charge had little chance of success in court.

"I just think I'm doing my job as a clerk," she said. "I'm not cavalier about issuing warrants."

Apparently, Whaley didn't care if the charge failed and Wentzel filed a counter complaint over the situation, Foster said. Furthermore, state lawmakers changed the law a few years ago on how warrants are issued. More police investigation is required than before, she said.

Wentzel said, "When the county maintains the road, I have a right to be there."

Whaley should understand, the commissioner said, "I'm not his enemy, but he needs to know that the way he's going about this is not the way to do it."

Wentzel reacted publicly to Whaley's letter o the editor published here in mid April. Some names were omitted in-line with the newspaper's right to edit letters and limit their length. Whaley's letter was brief.

The letter also complained about not getting an arrest warrant for Wentzel. The letter also said Whaley felt his civil rights had been violated since he knows someone else who got a warrant against someone else for trespassing.

In the end, Whaley concluded that there's a county election in August 2010, and "I hope officials that behave this way will not be put back in office."

The Marshall County Tribune welcomes letters to the editor.