It was just this weekend when we saw the EPA moving head with sweeping regulations which redefine the meaning of the Clean Water Act, seeking to extend their control over every pool of water in the country, despite the fact that a federal judge had put enforcement of the regulations on hold in 13 states. Today we’ll take a brief look at a case which has been percolating for quite a while and demonstrates the way that the agency can impact the lives of farmers and rural landowners. Andy Johnson, a farmer from Fort Bridger, Wyoming, made the bold move in 2012 of building a small earthen dam across a creek which runs through his property to create a stock pond for his horses and cattle. We’re not talking about a hydroelectric dam on a river here.. this is a stream that you can walk across without getting the tops of your socks wet for most of the year.Since the land in question is in the western region where the courts have ruled against the new interpretation of the Clean Water Act, one would think that the EPA would withdraw this suit, at least for now.
How this attracted the attention of the EPA isn’t exactly clear, but they came down on Andy like a ton of bricks, hitting him with fines which now total more than $16M.
Even though the Clean Water Act exempts stock ponds, and Mr. Johnson had obtained the necessary state permits, the EPA ordered him in January 2014 to restore the area to its original condition or accumulate fines of $37,500 a day. Instead, Mr. Johnson hired a lawyer.
“The EPA is out to expand its power, and I’m a test case,” said Mr. Johnson in a statement. “We’re going to fight them all the way.”
Last week, his attorneys — including the Pacific Legal Foundation and the Budd-Falen law firm in Cheyenne — filed a lawsuit against the agency to stop it from enforcing the compliance order.
Because the creek feeds into the Green River the EPA seems to feel that they hold jurisdiction over it, though calling that stream “navigable waters” would require expanding the definition of “boats” to include “galoshes.” Also, the “dam” in question was composed of sand, gravel, clay and concrete blocks, which the agency decided met the criteria for “pollutants.” (Aside from the cinder blocks, those materials are also locally known as “the ground.”) Amazingly, Johnson had filed for and been granted the appropriate local and state permits to have a stock pond, and stock ponds are specifically excluded from the traditional wording of the Clean Water Act. No matter… the agency felt that action was required to save the world and they were going to leap to the rescue.My bolds. My guess is that while sediment may be collected in the pond, if the pond serves as a stock pond, it may well be a collector of nutrients. On the the other hand, nutrients from cow waste may well run off the property as fast with no dam.
The truly ironic part is that Johnson had the water in the creek tested above and below his pond and the results indicated that the downstream water was actually cleaner than when it came in because the pond allowed sediment to settle out.
Let’s remember that the EPA was doing all of this long before they submitted their new guidelines which will allow them to regulate the water in your dog’s drinking dish. With these new rules they’re just looking to codify their ability to continue the meddling they’ve already been engaged in. Keep that in mind as this battle moves forward because Mr. Johnson’s property is all of eight acres in size. His pond wouldn’t support a self respecting brook trout. And the EPA wants to fine him $16M dollars. Something has to be done to bring this agency in check.The EPA had a similar case here in the Chesapeake Bay region, concerning the Alt Farm, where they tried to enforce a new vision of the Clean Water Act on a poultry operation. They used a similar fine system, threatening $37,500 daily fines while the matter was in dispute, then claimed the Alts could not benefit from legal help from the Farm Bureau, and finally tried to drop the suit without a decision (and without prejudice) when it looked like they were likely to lose. The Alts, with the help of the Farm Bureau, forced them a judicial decision, which they won handily.
But that was before the Obama Administration lost all interest in separation of powers, and decided to operate largely as a monarchy.