Man facing $16M in fines sues the EPA
September 4, 2015
Every evening at about the same time, a blue heron fishes a pond in rural Wyoming, unconcerned with how controversial that little piece of water has become.
For three years, a one-acre stock pond on a ranchette surrounded by larger ranches has been under watch by the Environmental Protection Agency.
The EPA asserts in a 50-page document that the stock pond threatens the Green River 100 miles away, and the federal agency is prepared to levy $16 million in fines against a welder and his family because of it.
Andy Johnson is standing his ground, refusing to destroy the pond his household built with what he maintains were the proper permits.
"I've been told it's the nicest stock pond in the state of Wyoming," Johnson says. "I built this thing with my own two hands. My family helped me build it. It took five years to get ready for. We paid for all the equipment, ran the equipment. We spent our life savings on this pond for our kids to have something to enjoy and for their kids."
Johnson of Ft. Bridger filed suit in U.S. District Court Aug. 27, hoping to end what he considers to be a bullying bureaucratic process and an abuse of power.
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"This agency is out to hurt people," Johnson says. "That's not the way America works."
Standing in the footsteps of pioneers who traded furs and resupplied wagon trains along the Oregon, California, and Mormon trails, Johnson is resolved as he readies for court.
The feds have 60 days to respond.
The suit calls on expert witnesses, includes the resources and the endorsement of a nonprofit, and quotes senators as saying the EPA is behaving in a "Draconian" manner.
Johnson also wants to be compensated for the money he spent disputing the EPA's claim. He estimates that number to be in the tens of thousands.
Spokesmen for the governor's office have said that Johnson's case potentially broadens the definition of federal waters, meaning it could infringe on states' rights with serious consequences for farmers and ranchers.
Johnson sure sees it that way.
"We're on nine or ten acres," he says, "watering our horses and cows and surrounded by working cattle ranches in a small town in a rural part of Wyoming. If I'm not safe, nobody is."
This is no bootlegged watering hole lacking in planning or aesthetic value. It was carefully engineered and permitted to last through the generations.
Johnson welded the spillway, hauled in rock, poured cement, installed a liner on the face of the dyke. "I'm proud of it and my family helped me build it. When we finished it, we put a flag pole down there."
The pond spills 300 yards to a man-made irrigation canal.
Even as fines stacked up, complying with the EPA's edict and tearing out the pond was never an option, Johnson says.
"You can't threaten me on my property," he says. "They were talking the most severe penalties and fines like we were some sort of big industry, and here we are a nine acre farm in the middle of nowhere."
Administrators for the Wyoming State Engineer's Office say the pond was properly permitted and that it complies with Wyoming State Engineer's Office regulations.
But the EPA has identified a need to remediate what it calls a violation of the Clean Water Act, citing the discharge of pollutants from dredged and fill material.
Ray Kagel, who is named as an expert in Johnson's suit, is co-owner of Kagel Environmental, LLC, and also a former wetlands enforcement officer with the Corps of Engineers. Kagel says that the pond's clean earthen fill below the high water mark of the small channel does not present a problem.
EPA's jurisdiction over the pond is being disputed.
The U.S. Supreme Court enforces a standard called the "significant nexus rule" that only applies to tributaries to the nearest navigable water. If Johnson's portion of Six Mile Creek is not a tributary to the Green River, the EPA does not have jurisdiction.
Even within that jurisdiction, a stock pond is supposed to be exempt from regulation.
The EPA is operating under a stigma that it's gearing up to impose more regulations on landowners and expand its jurisdiction.
Harriet Hageman, a water rights activist based in Cheyenne who is familiar with Johnson's case, said it's important for citizens like the Johnsons not to cave in the face of federal pressure.
"I believe that it is critically important to push back against federal regulatory overreach," she says. "I am proud of Andy Johnson and his family for being willing to challenge what is so clearly an effort by the EPA to further expand its authority."
Johnson said he has tested the pond's water and it comes back 41 times cleaner than the Green River. "The pond itself is pristine. The water is perfect. Ice cold, crystal clear."
He calls himself a law-abiding citizen and a conservationist who loves to hunt and fish and watch the wildlife that uses the pond – bald eagle, blue heron, ducks, several species of trout. Moose, mink, muskrat.
"It's a better riparian habitat because of the pond," he says. "We've got wetlands that weren't there before."
Johnson says he just wants the EPA to honor its own exemptions, so that he and wife Katie and their four girls can get back to enjoying it.
Says Johnson: "We're people of faith. We don't know why this has happened, but we're certain it's going to have a good outcome."
Click here to see our earlier story on Andy and his battle with the EPA.