The Environmental Protection Agency violated federal law by fining a Wyoming farmer $37,500 a day for building a stock pond on his own property, a new lawsuit alleges.
Andy Johnson now faces more than $16 million in fines even though he may have never violated the Clean Water Act as the EPA contends.
“The EPA is clearly acting beyond its authority, because the Clean Water Act exempts stock ponds from any requirement for a federal permit,” Jonathan Wood, a staff attorney for the Pacific Legal Foundation, which is representing Johnson, charged.
The Foundation contends that both Congress and the US Supreme Court clearly exempted stock ponds like the one in Wyoming from the law.
The EPA sent Johnson a compliance order to tear down a dam he had built on a stream on his property near Fort Bridger, Wyoming, in January 2014. Since then, Johnson’s stock pond has been at the center of a political and legal firestorm involving the Clean Water Act. The latest round of the battle is a lawsuit the Pacific Legal Foundation filed against the EPA in US District Court on Aug. 27.
The issue involved in the case is critical for farmers and property owners: Does the Clean Water Act give the EPA the authority to regulate non-navigable streams on private property? The agency says yes; Johnson and his lawyers and others say no.
“The Supreme Court has said that there must be a connection to a traditional navigable water to justify regulation under the Clean Water Act,” Wood noted. “The stream flows into an irrigation system that consumes all of the water. There is no effect on any traditional navigable water, such as a river or lake.”
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The action against Johnson is an attempt by the EPA to assert is authority over all running streams in the United States, US Senators David Vitter (R-Louisiana), John Barrasso (R-Wyoming) and Mike Enzi (R-Wyoming) alleged in a letter to the agency last year. They contend the EPA is trying to do an end-run around Congress and expand its authority.
If a court rules in favor of Johnson, it could set a precedent that could stop the EPA’s efforts to use the Clean Water Act to gain jurisdiction over other lands.
“We are challenging an outrageous example of EPA overreach against a private citizen who has done nothing wrong,” Wood said. “Andy Johnson constructed a pond for his livestock by damming a stream on his private property with no connection to any navigable water. Under the plain terms of the Clean Water Act, he was entirely within his rights, and didn’t need federal bureaucrats’ permission.”
The Pacific Legal Foundation has the support of Ray Kagel, a former Army Corps of Engineers enforcement officer.
The pond, Kagel contends, helped the environment.
“It created wetlands where there had previously been none,” Kagel said. “It provides habitat for fish and wildlife, including migratory waterfowl, passerine birds, a bald eagle, and moose. And it improves water quality by providing a place for sediment and other suspended solids to settle.
“According to tests by an independent lab, the water flowing out of Andy’s pond is three times cleaner than the water entering his pond,” Kagel added. “And the suspended solids in the nearest navigable waterway — the Green River — are 41 times greater than in Andy’s pond, which means that Andy’s pond is significantly cleaner than the downstream river that’s allegedly affected.”
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