Wyoming rancher thumps EPA on bogus wetlands violation

In a 21st century replay of the biblical battle between David and Goliath, Wyoming rancher Andy Johnson felled the most powerful regulatory giant in the country, the Environmental Protection Agency (EPA).

Johnson, owner of a small, 8-acre horse and cattle ranch in Fort Bridger, had been charged by EPA for violating the Clean Water Act (CWA) by putting a stock pond on his land. Because stock ponds are common on farms and ranches, they are expressly exempt from regulation by EPA and the U.S. Army Corps of Engineers under the CWA. Being familiar with the CWA’s exemption, Johnson, in 2012, obtained the proper state permits and set about damning up Six Mile Creek, which runs through his land, to create the stock pond.

“Navigable Interstate Water of the United States”

Ignoring the exemption, EPA, in January 2014, ordered Johnson to restore the pond to its original condition or face fines of $37,500 a day. EPA says that Six Mile Creek is a tributary of the Green River, which, according to the agency, is a “navigable interstate water of the United States,” thereby making Johnson’s stock pond subject to the CWA jurisdiction. The agency also claimed that the sand, gravel, and rocks used to construct the dam constitute “dredged material” and ”pollutants” under the CWA. By the spring of 2016, Johnson was looking at $20 million in fines.

Accustomed to dragging small landowners and business owners through costly litigation, EPA no doubt assumed that Johnson would throw in the towel. He didn’t. Instead, he enlisted the services of the Sacramento, Cal.-based Pacific Legal Foundation (PLF) and the Cheyanne, Wyo.-based Budd-Falling law firm.

When the smoke cleared, it was EPA – and not Johnson – that capitulated. In a settlement reached in May, Johnson agreed to plant willow trees and temporarily limit livestock access to a portion of the pond. In exchange, Johnson and his wife will pay NO fines.

“They will not lose their property. They will not have to agree to federal jurisdiction or a federal permit, which would surely have entailed onerous conditions,” PLF attorney Jonathan Wood told the Washington Times (May 10). “In effect, the government will treat the pond as an exempt stock pond in exchange for Andy further improving on the environmental benefits he has already created.”

Johnson called the settlement a “huge victory for us as well as property owners across the country.” He added: “The next family that finds itself in our situation, facing ominous threats from the EPA, can take heart from knowing that many of these threats will not come to pass. If, like us, you stand up the overreaching bureaucrats, they may very well back down.”

Fear of Setting a Legal Precedent

Why did EPA back down? As EPA made clear from the very beginning, the Johnson case was ultimately about the agency’s jurisdiction to regulate a wetland under the CWA. The Obama EPA, through its proposed “Waters of the United States” (WOTUS) rule is attempting – without congressional authorization – to expand its jurisdiction to bodies of water not envisioned in the CWA. A federal court has stayed implementation of the rule nationwide pending the outcome of the numerous lawsuits challenging the agency’s action. Having barely a leg to stand on in the Wyoming case, EPA may have decided this was the worst possible time to risk losing a precedent-setting wetlands case.

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About the Author: Bonner Cohen, Ph. D.

Bonner Cohen, Ph. D.

Bonner R. Cohen, Ph. D., is a senior policy analyst with CFACT.

  • Dianna9490

    Biy they r akways after tge farmers & the ranchers- its PATGETIC!

  • moberndorf

    The Pacific Legal Foundation and the Budd-Fallon law firm are the best in the country! The EPA is totally unconstitutional and should be dismantled immediately.

  • johnnygeneric

    I wouldn’t have given in at ALL. The next poor widow who has a small pond will have to pony up several thousands of dollars to “improve” the land around the pond. Money she probably doesn’t have. The EPA is perverted.

    • Brandon Whosville

      Exactly. I see this as a loss.

  • TFHC Star

    I’m curious – was the rancher forced to pay his legal costs in this effort, as well, or were those properly put on the EPA as part of this settlement? If not, then perhaps the settlement was still a bit lacking …

    • ruben

      to have put them on EPA means on taxpayers. EPA bureaucrats should be personally charged with the costs!!

      • TFHC Star

        I don’t disagree with that in the least. Nevertheless, the rancher has been persecuted unreasonably and unlawfully; he should not have to directly bear the cost of that.

      • Colorado Conservative

        Just like they should have been held responsible for the heavy metal spill in the Las Animas River (Durango, CO) a few months ago.

  • jameshrust

    The farmer is out legal costs which would be impossible for the average American. That is why this is judicial harassment from the EPA who lives off the taxpayer’s dole.
    Donald Trump has said he would get rid of the EPA. Vote him in. EPA’s budget is over $10 billion per year and all state governments have similar organizations that can do that job.
    We need to reduce the size of the federal government. The founding fathers wanted defense of borders from attack. Go back to that and save a trillion per year. The present government goes in debt $1.5 billion per day.
    James H. Rust, professor of nuclear engineering

    • Mita

      However, he doesn’t believe in turning the 27% of the mainland U.S. – the percentage of the U.S. ‘owned’ by the federal government – back to the control of the states, but believes the Bureau of Land Management would do a better job of “taking care of the land.” So why would he dismantle one huge government bureaucracy and leave the other one alone to do what they will?

    • Johnstoirvin

      It’s worse than that. The government spends over $10 Billion each and every day, rain or shine. Of that amount, about 40% is borrowed, which means our national debt grows by $4 Billion per day.

      • Dano2

        Very common misperception. Gummints budgets do not run like a family budget.

        Educate yourself.

        Best,

        d

        • wally12

          @Dano2: You sure like to support big government don’t you? The problem is you don’t have the moxie to know much about debt. The only difference between individual debt and government debt is that individuals have to pay back their debt at some point in time.. The government doesn’t. All the government needs to do is to print money and reduce the affect of the debt by making money cheaper. Thus, the citizens end up taking the hit since inflation eats up their wealth. The other thing that government does is to raise taxes to help in balancing their budget which they also fail to adhere to. So you need to take your own advise to Johntoivin and “Educate Yourself”.

          Best.

          • Dano2

            Public finance.

            Let us know when you take a class in it. Or even learn what it is.

            Best,

            D

            • wally12

              @Dano: Please tell all the commenters what classes you have taken and passed that makes you qualified to even comment. We also would like to know what level of education you have. Is it grade school , middle school , high school , college, or graduate school. Also tell us what yor grades were in each of these schools. I am waiting but please don’t lie.

              • Dano2

                I have two BS and a master’s which includes two macro and micro econ each, public finance, urban econ, ag econ, and land use law which allows me to be able to comment on the issue, thanks!

                Now, tell us why you know nothing about public finance or how governments have operated since time immemorial. Trump U student? Homeschooled?

                Best,

                D

                • wally12

                  @Dano2: Thanks for telling me your education training. With that vast resume, what is your current position. Are you a paid blogger on all these web sites and do you still live in the basement of your parents home. I ask you this since you have the gall to take the low road that many liberals take whenever they have difficulty addressing real issue and throw stones at the person who is attempting to relate to real questions and issues.

                  Best!

                  • Dano2

                    Thanks, you can’t hide the fact you don’t understand how government finance works.

                    Awh!

                    Best,

                    D

                    • wally12

                      @Dano2: What are you afraid of? Tell me which company you work for so I can verify if you are stating the truth

                    • Dano2

                      You’re totes clever.

                      Best,

                      D

        • ninetyninepct

          I’m confused and obviously need some information. Hopefully you can enlighten me.

          What is the difference between a family and a Government budget? I always thought a budget was a budget. I’m not being foolish, I really would like to know so that I can deal with my own Government reps.

          PS: I just discovered this forum. I’m a bit late at the table.

          • Dano2

            No worries.

            Public finance is not private finance. Government runs on debt. Government raises revenue via taxes and debt (bonds).

            Private family budgets do not ‘run’ on debt, save for the fact that American/North American families are often in debt from mortgages and credit cards.

            Best,

            D

  • cliff

    Why did he have to plant the trees?

    • Ryan Tracey

      Helps to prevent runoff from his land building up in the pond and continuing downstream. It makes perfect sense for him to want to do that anyways.
      But they could have just started with, sir, that’s a nice pond, but they should be built like this for your safety and everyone down river.
      All in all, I think the EPA just really wanted to walk away with him spending some kind of money so they don’t look completely useless.

      • wally12

        @Ryan Tracey: Please reexamine what you posted. A few trees will help to prevent some erosion at or near the pond bank but will do little to prevent dirt and sediment from entering the pond. The same is true for the stream that has no pond. The amount of erosion will be identical to having the stream untouched without the pond. What the EPA may have reasoned is that cattle will congregate at the pond and create less grass near the pond which would result in some run off of the bare soil. The problem with that is that cattle will drink water at the closest source regardless of the stream depth and a similar erosion will occur. The reason for the pond is that many streams will tend to dry up at some point in the year. Thus, the rancher was simply providing a storage pond to provide needed water for his stock during dry periods. Last, a pond is a slower moving body of water and doesn’t contribute toward a significant amount of sediment being carried down steam as compared to the relatively faster moving natural flow of the stream. That means that the pond was an environmental plus to the stream by collecting upstream sediment. Thus, the rancher may have a need to dredge his pond at some time in the future in order to keep it at a reasonable depth. Thus, the EPA was simply flexing its muscle and attempting to increase its power over all individuals. The EPA needs to be controlled by reasonable people and not allowed to become too powerful as is the case today.

    • Ryan Tracey

      “Under the settlement reached Monday in federal court, Johnson will not have to pay the fines or drain the pond. But he will have to plant willow trees around the pond to protect the ground from erosion, and he’ll have to put a fence to temporarily protect it from livestock.”
      Source
      http://thehill.com/policy/energy-environment/279421-epa-settles-water-pollution-case-with-wyoming-farmer#

  • daveveselenak

    The correct acronym for them: E – xtortionists P – ilfering A – merica! They are just an arm of this communist homo and lezbo NWO regime – that simple and true! We have seen the enemy and it is them! REVOLUTION will be the SOLUTION and perhaps those UN armored vehicles being spotted around the country’s highways, the closing of many Walmarts I. e. detention centers and all of the false flags being carried out by the CIA and the FBI – Orlando being the latest – proves my point! Armr==============================? you will be needing them – guaranteed!

    • Mita

      Same with the BLM.
      B= Bully
      L= Land
      M= Mongers.

      • daveveselenak

        Amen,

  • Beatlebaum

    If the EPA is so gung ho about ponds and creeks, they should sue beavers. Beavers build dams across small streams all the time and do so without permits! The EPA and AG Lynch should investigate.

    • wally12

      @Beatlebaum: I’m a little late on reading this article and agree 100%. It was my first thought.

  • Sarah417

    There’s only one way to stop this over reaching government and that is to stop paying their salaries. Seriously, we have to stop paying them, maybe barter or something similar could work.

  • AllenBarclayAllen

    Supreme Court just gave Gays the right to marry with the 14 th Amendment that specifically says ownership of land (and it’s water rights ) are state law protected from financial impuniment by all other states and the Federal Government !
    I’d say these jumping up and down liberals have shot themselves in the foot with a double aught buck shotgun shell !
    Not to mention all these state property rights are long standing in Law before obummers federal atackes with General warrantee Deed protected in those states and by the 14 Amendment that’s also protects state and citizen ownership from federal financial infringement of any kind !
    We need a quote from the farm movie , ” when you come to take me off my land , you’d better bring more that a damn piece of paper in your hand Mr obummers ” !

  • Elizabeth Davis

    While living in SC I owned a Real Estate Company . One of my clients was from Florida had a farm on the St Johns river and because it had certain willows on it they declared it a wet lands he could not sell it give it away or deed it to the State.because one wants something they can not use He was stuck with the 25 acres and a house that was not usable all because it had at least 7 willow Trees on the property Sounds stupid but was true.

  • GRAMPA

    When will congress step in and stop the EPA from imposing fines on its own findings and without a court finding. We need to define the definitions that they use. To start we must make English our official language. With the words defined by the official language dictionary government may not stretch the meaning of words to expand their powers.
    Grampa

  • James in Texas

    I, like many citizens of this Nation look forward to the day when agencies like this Criminal Enterprise are taken-down and all of the lazy overpaid employees and bureaucrats are thrown out on their useless backsides. Government employment has become an “only way to wealth by corruption” that is legal!

  • Norman Balint

    These are the tyrants the founding fathers warned us about.

  • kyleyoder

    Our government is against its own people–the Left’s wet dream.

  • Brandon Whosville

    Huge Victory would be making those assholes pay, not still imposing some form of regulation upon you.

  • Jack Turner

    So this guy just stole a river???

  • Gregory Urbach

    I’m glad the farmer beat the EPA, but the author lost me when he called it Obama’s EPA. Big government bureaucracies don’t care who the president is, they are protected by the civil service. And turning this into an attack on Obama just proved the author to be partisan clown. If you want to change how agencies like the EPA work, you need to focus on congress, not whoever happens to be president.