A Wyoming farmer is facing $16 million in fines for the unspeakable crime of creating a stock pond for his horses and cattle on his eight-acre property. Bringing the man to justice is none other than the Environmental Protection Agency (EPA), whose breathtaking incompetence led to the August 5th spill of millions of gallons of toxic sludge into a vast river system covering parts of Colorado, New Mexico, and Utah.
In 2012, Andy Johnson built the stock pond on his small farm near Fort Bridger, Wyoming, by damming up Six Mile Creek, which runs through his property. Johnson had acquired all the necessary permits for the project from state agencies. Because stock ponds are expressly exempt from the federal Clean Water Act (CWA), he was not required to seek permits from EPA or the U.S. Army Corps of Engineers.
But of what import is the letter of the law when the EPA is determined to throw its weight around and crush a small farmer in the rural West? In January 2014, the EPA ordered Johnson to restore the pond to its original condition or face fines of $37,500 a day.
“Navigable interstate water of the United States”
The EPA explains its action by saying Six Mile Creek is a tributary of the Green River, which, according to the agency, is “a navigable interstate water of the United States” under the CWA. EPA also described the sand, gravel, clay, and concrete blocks used to construct the dam as “dredged material” and “pollutants” under the CWA (Washington Times, Aug. 31). The $37,500-a-day fines EPA threatened to impose on Johnson have now added up to the tidy sum of $16 million.
Instead of bowing to the demands of bureaucrats in far-away Washington, Johnson decided to fight back and is now represented by the Sacramento, California-based Pacific Legal Foundation (PLF) and the Budd-Falen Law Office in Cheyenne, Wyoming.
“The EPA’s double standard is mind-blowing,” PLF attorney Jonathan Wood said in a statement filed in federal court August 27. “This is the same agency that just created a toxic mess in Colorado’s Animas River with no accountability for the blundering bureaucracy. But here they are, threatening Andy Johnson with astronomical fines, for building an environmentally beneficial stock pond that actually purifies the water that runs through it.”
Saying the EPA is out to “expand its power” and make him a test case, Johnson has resolved the fight the agency “all the way.” “My family depends on me, and when the EPA came into my life, they just didn’t attack me, they attacked my family and our home,” he was quoted in the Casper Star Tribune as saying. “We told them time and time and time again that it’s exempt, here are the facts, but they’ve basically ignored it.” Johnson added that his stock pond has actually improved the environment by providing water for moose, eagles, heron, and other wildlife.
In its complaint against Johnson, EPA uses language which, in light of recent events, is dripping in unintended irony. “Six Mile Creek filled and disturbed by Respondent’s unauthorized activities provided various functions and values, including wildlife habitat for birds mammals, fish, reptiles, and amphibians; water quality enhancement; flood attenuation; and/or aesthetics,” (Washington Times, Aug. 31)
The EPA’s description of the pre-dam Six Mile Creek’s ecological significance bears a striking resemblance to the role played by Colorado’s Animas River and New Mexico’s San Juan River prior to the August 5th toxic spill resulting from the agency’s botched plugging of the Gold King Mine near Durango, Colorado. The scale of the EPA’s disaster far exceeds – by orders of magnitude – whatever disturbance was caused by Johnson’s stock pond. Another difference, of course, is that the EPA wants to fine farmer Johnson but has no intention of fining itself or holding any of its employees or contractors responsible for the mess it made.
Preview of coming attractions
In filing his challenge to the EPA in August 2015, farmer Johnson showed exquisite timing. It was not only the month that an EPA-led crew polluted a river system in the Southwest; the suit also coincided with the EPA’s rollout of its ‘Waters of the United States” (WOTUS) rule. WOTUS is designed to bring untold millions of acres of private land under the EPA’s jurisdiction under the guise of “protecting” bodies of water throughout the country.
The EPA’s idea of “protecting” water was amply demonstrated in its handling of the Gold King Mine. Of equal concern, however, are the agency’s repeated assurances that landowners have nothing to fear from WOTUS, because the rule contains a list of exemptions that include stock ponds. But in the case of the Wyoming farmer, the agency has shown a blatant disregard for an exemption Congress included in the CWA over four decades ago. Having just given itself new powers over private land, the EPA’s claims that it will honor exemptions enumerated in the WOTUS rule can be taken with the proverbial grain of salt. What happened to farmer Johnson is a preview of coming attractions if this rule is allowed to stand.