Wyoming rancher Andy Johnson wanted to build a pond on his property for his cattle. He got the necessary state permits and did it. Cattle now drink from the pond, and birds and fish call it home.
But Johnson didn’t ask federal officials if he could build the pond. EPA came along and told him he had to fill it in. Johnson refused and is being fined $37,000 per day by the agency.
Johnson’s fight with the federal government illustrates why there has been such outcry over EPA’s new water rule, the Waters of the U.S. (WOTUS)—a rule that extends federal jurisdiction over nearly every body of water in the United States.
Johnson is facing millions in fines from the federal government after the EPA determined his small pond — technically a “stock pond” to provide better access to water for animals on his ranch — is somehow violating the federal Clean Water Act.
“We went through all the hoops that the state of Wyoming required, and I’m proud of what we built,” Johnson said. “The EPA ignored all that.”
In a compliance order, the EPA told Johnson he had to return his property — under federal oversight — to conditions before the stock pond was built. When he refused to comply, the EPA tagged Johnson with a fines of $37,000 per day.
Johnson now owes more than $16 million in fines.
EPA acknowledges that constructing and maintaining stock ponds don't require federal permits under the Clean Water Act. But the agency argues the exemption doesn’t apply in this case because it claims Johnson built the pond in a navigable water, The Washington Times reports:
The creek is a tributary of the Green River, which is a “navigable, interstate water of the United States,” according to the EPA order.
As a result, the U.S. Army Corps of Engineers concluded that Mr. Johnson needed a “standard, project-specific CWA permit,” and not just the permits issued by Wyoming, which he had obtained.
The EPA also described the sand, gravel, clay and concrete blocks used by Mr. Johnson to construct the dam as “dredged material” and “pollutants” as described under the Clean Water Act.
As noted above, the state of Wyoming had already approved the placement of those so-called “pollutants” in accordance with a state-issued permit. Importantly, one of Johnson’s lawyers, Dan Frank, said no federal official visited the pond before concluding that Johnson broke the law:
"As we investigated this case, we found out the Army Corps of Engineers asserted jurisdiction over this little creek without ever leaving the office. They did what's called a 'desktop determination,'" Frank said. "Had they ever gone out, they'd have found it dead-ends in a canal, and it doesn't ever reach any navigable waters of the United States.
This is the “Matrix Defense” where federal agencies rely more on computer models and hydrologic software than physical evidence.
Whether Johnson has or hasn’t violated the Clean Water Act will be decided by a federal court.
A bigger concern is the regulatory overreach claimed by the new Waters of the U.S. (WOTUS) definition. Both agriculture and industry know that the rule will make it even harder to do businesses in America.
In selling WOTUS to skeptical farmers and ranchers, EPA insisted the “rule does not create any new permitting requirements” for agriculture. But judging by what Johnson is going through, the situation is painful enough and will only get worse now that WOTUS has expanded EPA’s jurisdiction.
Take what this one rancher is going through and multiply it by the multitude of projects by home builders, retailers, energy developers, factories, and other businesses across the country that now may, or may not occur because they are located near newly-declared, federally-regulated bodies of water.
In some instances, questions about federal jurisdiction will be cut and dry, but in many others it will be a grey area with federal officials plugging in data into a computer model like they did with Johnson. If a federal agency deems it so, a task as basic as clearing weeds out of a ditch could need a federal permit.
It’s not surprising that so many industries have united against this water rule. They understand that it will be yet another barrier to getting things done.
Permitting costs will rise, and projects that would be viable under a more commonsense water rule will be abandoned. We’ll all pay the price with slower economic growth and reduced job creation.
One last thing, should EPA win and Johnson be made to fill in his pond, water quality might be worse. “Water exiting the pond is actually cleaner than the water flowing into it, according to tests by an independent environmental lab and included as part of the lawsuit,” Watchdog.org reports.
This is ironic given how EPA allowed three million gallons of toxic water to spill into a Colorado river.
Tell Congress to Stop the EPA's WOTUS Rule.