Aggies hope Trump decides to repeal WOTUS
Wyoming Rancher ends legal battle with EPA
Andy Johnson, a rancher, welder and father to four children from Fort Bridger, Wyo., is no stranger to what he believed were bullying tactics of the EPA after he was fined for constructing a stock pond on his personal property.
In 2015, he finally ended a five-year legal battle with the EPA with $16.5 million in fines waived with the help of Kagel’s environmental consultation.
“I was contacted by Johnson’s lawyer and went as a neutral party to assess the situation and offer him advice on what to do next,” said Kagel. After a thorough investigation of Johnson’s place, it was clear that he was innocent and in no violation on three points, he sad.
“First, there was no significant effect on the nearest navigable water, which was located 100 miles away from the pond, so there was no jurisdiction under the Clean Water Act because there was no significant nexus to the nearest navigable water. Second, when he constructed the pond, he obtained a stock pond permit, and stock ponds are exempt from federal regulations. Third, even if the pond was directly connected and had a significant effect on the nearest navigable water and it was truly not a stock pond, he still wasn’t in violation because the amount of discharge was less than 10 cubic yards below the water mark of this unnamed little creek, and the project would have been granted under the general nationwide permit.
Johnson had gone through the necessary paperwork to receive a stock pond permit from the state of Wyoming, but when a neighbor complained and called the EPA, trouble soon came knocking.
“The federal government showed up, and even though they knew they didn’t have any jursidction, they ignored all of that and overreached their authority anyway,” said Kagel. “Andy Johnson did nothing wrong, but they turned his life upside down.”
“My entire life, I’ve wanted to own my own property, build a house, have some animals and be a responsible landowner,” said Johnson. “I’ve always tried my best to do things right. With the stock pond, I had the state engineer come out and survey the place before receiving my permit to build the stock pond. Eight months into the project, I was slapped with a $37,500/day fine. They threatened me civilly and criminally — everything you could imagine, they did to destroy us.”
Johnson’s case gained national attention, and even President Trump mentioned his case the day he signed his Executive Order saying, “In one case in Wyoming, a rancher was fined $37,000 a day by the EPA for digging a small watering hole for his cattle. His land. These abuses were, and are, why such incredible opposition to this rule from the hundreds of organizations took place in all 50 states. It’s a horrible, horrible rule.”
Johnson chose to fight the EPA, and ultimately, in mediation, his fines were waived, but it wasn’t without massive heartache, substantial legal and consulting fees and the threat that he could lose everything if he didn’t remove his stock pond.
“President Trump’s executive order to review WOTUS is great news for land owners, small businesses and rural communities,” said Johnson. “I hope the first step is to abolish it. It’s time for accountability and for the EPA to be reigned in, follow some common sense and give power back to the states. The EPA has hurt enough people, families and businesses, and I couldn’t be happier with the direction things are going.”
On February 28, 2017, President Donald Trump issued an Executive Order directing the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers to review and then rescind or revise the 2015 Clean Water Rule: Definition of “Waters of the United States.”
After signing the Executive Order, Trump told reporters, “The EPA’s so-called ‘Waters of the United States’ rule is one of the worst examples of federal regulation, and it has truly run amok, and is one of the rules most strongly opposed by farmers, ranchers and agricultural workers all across our land. It’s prohibiting them from being allowed to do what they’re supposed to be doing. It’s been a disaster.
Following Trump’s order, new EPA Administrator Scott Pruitt said, “EPA intends to immediately implement the Executive Order and submit a Notice to the Office of the Federal Register announcing our intent to review the 2015 Rule, and then to propose a new rule that will rescind or revise that rule. The President’s action today preserves a federal role in protecting water, but it also restores the states’ important role in the regulation of water.”
This Executive Order is a huge relief for many landowners who have felt the wrath of the overreaching EPA these last eight years over what constitutes “navigable waters.”
“We hope the EPA will use some common sense in reviewing the WOTUS rule,” said Scott VanderWal, South Dakota Farm Bureau president. “So many farmers and ranchers have put projects on hold because they aren’t sure what they can and cannot do on their own land. I think landowners will be okay as long as the injunction on WOTUS stays in place while the EPA makes changes. We would prefer that the EPA would simply withdraw this rule, but it’s uncertain which route the administration will take. In the meantime, our organization is going to continue to push the process forward, so people have more certainty on how they can manage their land.”
VanderWal says his organization plans to also work closely with Sonny Perdue once he is officially confirmed as the USDA Secretary, and he hopes Perdue will help ……../make the case for America’s farmers and ranchers, as well.
The EPA and the Army for Civil Works have stated their intentions to immediately implement the Executive Order and public a Notice of Proposed Rulemaking to rescind or revise the rule.
Published in the Federal Register, the EPA, Department of Defense and Department of the Army Corps of Engineers, released the following statement: “Today (March 6, 2017), the EPA and the Army announce their intention to review that rule, and provide advanced notice of a forthcoming proposed rulemaking consistent with the Executive Order. In doing so, the agencies will consider interpreting the term ‘navigable waters,’ as defined in the CWA in a manner consistent with the opinion of Justice Scalia in Rapanos. It is important that stakeholders and the public at large have certainty as to how the CWA applies to their activities.”
Although the timeline for these changes is uncertain, it’s clear the EPA is planning to move swiftly in taking action; however, John Hansen, Nebraska Farmers Union president, says agriculture needs to make voluntary efforts to work with the EPA in the future.
“If you go back to the reasons behind the EPA’s rule, it was in response to multiple U.S. Supreme Court decisions, which put the EPA under obligation to go through the rule-making process that they did,” said Hansen. “It was determined that in the case of downstream water pollution issues that the EPA go back upstream to where the pollution came from. With that understanding of the legal reality, the Farmers Union, as a national organization, was very concerned about the direction of those rulings, and it makes good sense to get to the root of the downstream pollution problem. Obviously, that puts agriculture at some risk if the EPA doesn’t offer the appropriate guidance and direction for how to handle those pollutants. Our fear is if we don’t get to the root of the legal challenges that have come before, and will come again, that the worst case scenario is this issue will end up back in the Supreme Court where they’ll use legal precedence as a guide instead of appropriate resource management tools.”
Doug Sombke, president for the South Dakota Farmers Union added, “WOTUS is something that needed to be addressed, and we are pleased to see him take this issue up. We are hopeful that this administration will handle it better than the last administration did.”
Ray Kagel, co-owner of Kagel Environmental, LLC, and former wetlands enforcement officer with the Corps of Engineers, is hopeful that the Trump Administration will undo the damage Obama’s EPA has inflicted upon the nation’s landowners.
“I think we’ll see the EPA’s constant persecution and bullying of innocent landowners soon subside under President Trump,” said Kagel, who has assisted many farmers and ranchers in recent years in legal battles with the EPA. “My best guess and hope is that the EPA and Army Corps will completely dismiss and dump the WOTUS rule and either start over with more reasonable, understandable and practical definitions, or go back to the way it was before Obama’s EPA came up with the new definition for waters of the U.S.”
While it’s unclear if previous rulings which criminally charged and civilly fined landowners under Obama’s term will be waived in the future, Kagel advises anyone who receives a letter of notice from the EPA to act swiftly and hire a good lawyer.
“If you receive any type of official correspondence, get an attorney or environmental consultant and respond in a timely fashion,” said Kagel. “Don’t give any dates or information voluntarily, even if the letter sounds like they are trying to help you, because believe me, the information can and will be used against you. Get legal council to help you not incriminate yourselves. The EPA has no moral or ethical compass, and I’m glad to see Scott Pruitt taking the reigns. Perhaps we’ll see fewer imagined and alleged impact reports to the air, soil and water.”
To explain the damage the EPA has imposed on innocent people, Kagel offered the example of Elaine Kelly, a 65-year old woman who, in 2012, was facing six years in federal prison for a felony violation of the Clean Water Act. Kelly was advised by her legal council to plead guilty for discharging pollutants like dirt and rock into a wetland on her family’s property, which was home to the Hoot Owl Hollow Campground and RV Park. The Iowa woman was slated to report for a 14-month jail sentence when she got a random call from Kagel.
“I read about Kelly in an EPA news release and called Kelly out of the blue,” said Kagel. “She told me her story, and this woman was a grandmother to 13 grandchildren and had never even had a parking ticket. She was crying telling me she was headed to federal prison, and it was too late to fight back. I got her in touch with a better lawyer, and the next day, the judge agreed to let her withdraw her guilty plea until we could go out and do a wetlands study on her campground. When the EPA found out what we were going to do, they dropped all of the charges against Kelly completely. If they really had a case, they would have pursued it. I believe the EPA tries to brag about how many fines they leveed, how many people they sent to jail and how they’ve ‘saved the environment,’ so they can puff up their chests and show off their report card to Congress to get more money allocated to them each year. I believe this is a huge reason they have become so overreaching in recent years, and I look forward to this power grab to subside under President Trump.”
Kagel encourages landowners who have been notified by the EPA to contact him for advise on their cases. Kagel can be reached at his Idaho office at 208-745-0076 or email@example.com.