Water fight: EPA threatens fines for family’s stock dam
June 16, 2014
The spillway for Andy Johnson's dam says, "In God we trust" on one side, and "United we stand," on the other. Four American flags wave over the spillway. A welder by trade, Johnson designed and built the spillway himself. "That's just who we are around here," he said.
Johnson and his wife, Katie have lived on the property near Fort Bridger, Wyo. They built the pond on Six Mile Creek in 2011 to provide water for their cattle and horses, and a place for their family, including daughters ages 4, 9 and 12, to swim and fish.
Now, they're fighting the federal government for the right to keep it.
When Johnson started the project, he worked with the state and local engineers' offices to make sure he complied with all the regulations.
Rick Deuell, surface water administrator with the Wyoming State Engineer's Office, said, "He applied for a permit for a stock water pond. That was approved. He complied with all the Wyoming State Engineer's Office regulations."
He said his office sends a notice to all permit applicants stating they are responsible for determining if any further permits are required from other agencies.
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Johnson said they do indeed do this–now. "They changed the permitting process after this case. They send out a certified letter stating that any other permit required is the responsibility of the property owner. I did not receive that letter. Both the state agency and the local engineer's office have learned a tremendous amount throughout this case. At this point nobody actually knows if we truly do need a 404 permit or not. That's pretty much what the whole case is about."
A Section 404 permit is required by the Corps of Engineers, as well as the Environmental Protection Agency, for the discharge of dredged or fill material into water of the U.S., including wetlands. Certain activities, including construction and maintenance of farm or stock ponds, are exempt from Section 404 requirements, according to the water.epa.gov website. However, if the activity represents a new use of the water, and the activity would result in a reduction in reach or impairment of flow or circulation of regulated waters, including wetlands, the activity is not exempt.
Deuell said the application for a stock pond is one of the most common his office deals with.
Johnson said, "I know hundreds—literally hundreds—of people in my state who have put in a pond like this without a permit from the EPA. In fact, I'm one of the few who have acquired a state permit for a pond. We're trying to go about this the right way. It's cost us a fortune. We pay so much in taxes, we tried to get permission, and to have this agency work against us is frustrating."
The difference for Johnson ended up being in who lives downstream. "From the information we have gathered, we have a neighbor who took it upon themselves to make all the phone calls. It's really very strange. Everybody in our community absolutely loves our project. These neighbors moved here from out of state," Johnson said. "Their son was in the trackhoe when I was building the dam. I was showing him how to run it, they were out there taking pictures. The next day they reported us to the Corps of Engineers."
The Investigation Begins
The U.S. Army Corps of Engineers sent two interns to the Johnsons' place. "They did a real brief inspection. They, at that point, didn't know if we were in violation or not. They said they would contact us," Johnson said.
The next contact they received was from the Environmental Protection Agency. "They came out to our house. We said if there's any problem or anything we missed, we apologize and are willing to work with you. They told us we may or may not be in violation, but it was up to us to prove we're not."
According to a statement from the EPA, "Mr. Johnson's construction of a dam within the main channel of Six Mile Creek was done in violation of a well-known and well-established Clean Water Act permitting process administered by the U.S. Army Corps of Engineers and EPA. These permits are intended to protect our nation's surface water resources, and downstream waters and uses, from activities that can introduce pollutants to waterways and permanently alter aquatic habitat and watersheds. EPA understands the Wyoming State Engineer's Office informed Mr. Johnson of this permitting process during its review of his project in 2011…The Corps also did so in October of 2012."
Johnson tells a different story. "We had a conference call in June of 2013 with the state engineer's office, EPA, Corps, federal attorneys and local state engineer's office. The state told the EPA that they had never informed me of a 404 permit, nor do they deal with a 404 permit with anybody in the state. We thought at that time that everything was cleared up."
The conference call concluded with the understanding that the Johnsons would be notified of a decision by the Fourth of July. Six months later they received a 50-page administrative order in the mail, saying they were in violation of the Clean Water Act. The order said they had 10 days to respond in writing that they would completely comply with the order, or request a conference call with the EPA.
The order said Six Mile Creek is a perennial tributary of the Black Forks River, which is a perennial tributary of the Green River. The Green River is, and was at all relevant times a navigable, interstate water of the United States, according to the order.
According to the compliance order, the area of the creek affected by the "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."
It further stipulates that "the placement of dredged and fill material into Six Mile Creek constitutes the 'discharge of pollutants,'" and says, "Activities to be carried out under this Order are remedial, not punitive, and are necessary to achieve the CWA's objective 'to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.'"
Ray Kagel, co-owner of Kagel Environmental, LLC, and former wetlands enforcement officer with the Corps of Engineers, was hired by Johnson's attorney, Dan Frank, to assess the situation. Kagel's business focuses on assisting property owners who are accused of violating the CWA, particularly Section 404. Kagel said, "Although the EPA alleges that Mr. Johnson's placement of fill material into Six Mile Creek constituted the "discharge of pollutants," the actual truth of the matter is that the relatively tiny amount of clean earthen fill material placed below the high water mark of this small channel could not possibly affect the physical, chemical, and biological integrity of the Green River, located some 100 miles away. This standard (affecting the physical, chemical and biological integrity of the nearest navigable water) is required by the U.S. Supreme Court in order for the EPA to have Section 404 jurisdiction (See Rapanos V EPA). It's referred to as the "significant nexus" rule."
$187,000 a Day
The fines outlined in the order could amount to $187,000 per day, if Johnson refuses to comply by completely removing the dam. According to the EPA statement, "EPA has not made any determinations regarding penalties in this matter. An order the agency sent to Mr. Johnson this past January simply cites the maximum penalties for noncompliance established by Congress in the Clean Water Act. References to these penalty provisions are included in all EPA enforcement orders to ensure that respondents are fully aware of the relevant provisions of environmental laws."
Johnson said the dam has provided an improvement to the habitat and aesthetics, as well as the water quality. "Our water test came back that our water is actually 41 times cleaner than the so-called affected navigable water, which is 100 miles from me," Johnson said. "We see ducks and geese, blue herons, bald eagles. There are 4-5-pound brown trout in there."
Though the EPA is bringing the accusations of the violations, Johnson is charged with proving that he did not violate the CWA. "The EPA has done no soil samples, no water test, a very, very vague jurisdictional report and basically put the burden of proof on us," Johnson said. "We had no idea what to do. We didn't know what they wanted. We didn't know what to look for. They never told us how to be in compliance, if we needed to do anything, change anything. They never helped us."
According to Kagel, Johnson was not in violation of the CWA for three different reasons. "We determined, in our professional opinion, that the little channel in which Andy Johnson constructed his pond was not subject to jurisdiction under the CWA. The small channel of Six Mile Creek flows directly into a non-jurisdictional man-made irrigation canal, and is therefore not a tributary to the nearest navigable water, which is the Green River located approximately 100 miles away. Even if it were subject to the CWA, it clearly fit the exemption for a stock watering pond. His permit from the state of Wyoming said it was specifically for a stock watering permit. Even if it was subject to jurisdiction under the CWA, and if it didn't qualify for that exemption, it was still authorized—which means there was no violation—under a general nationwide permit number 18. This permit does not require any notification to the Corps of Engineers. It's an automatic permit that you don't have to make any application for. Provided the work doesn't involve filling wetlands—and both the Corps and EPA admitted that this doesn't involve filling wetlands—it is in compliance if the fill material is less than 10 cubic yards below the ordinary high water mark of the channel. We found it was about eight and a half cubic yards below the high water mark. Even in my former position as an enforcement officer, I could have found no evidence of any violation."
Clarifying the Clean Water Act
Johnson's case has come to the attention of the nation as the EPA is trying to combat the idea that a recently-proposed clarification of the protections under the Clean Water Act will impose more regulations on landowners, particularly farmers and ranchers.
According to an EPA press release, "The proposed rule clarifies protection for streams and wetlands. The proposed definitions of waters will apply to all Clean Water Act programs. It does not protect any new types of waters that have not historically been covered under the Clean Water Act and is consistent with the Supreme Court's more narrow reading of Clean Water Act jurisdiction."
The press release goes on to say that the proposed rule will not affect the existing agricultural exemptions. "The proposed rule preserves the Clean Water Act exemptions and exclusions for agriculture. Additionally, EPA and the Army Corps have coordinated with the U.S. Department of Agriculture (USDA) to develop an interpretive rule to ensure that 56 specific conservation practices that protect or improve water quality will not be subject to Section 404 dredged or fill permitting requirements. The agencies will work together to implement these new exemptions and periodically review, and update USDA's Natural Resources Conservation Service conservation practice standards and activities that would qualify under the exemption. Any agriculture activity that does not result in the discharge of a pollutant to waters of the U.S. still does not require a permit."
Lisa McClain-Vanderpool, a media officer/public affairs specialist with the EPA in Denver, said, "It's our claim that it does not expand jurisdiction. It's a clarification of the definition of waters of the U.S. that should not result in any kind of expansion. It should streamline and make the process more efficient. That process has been bogged down because of confusion after the Supreme Court decisions in 2001 and 2006. Our hope is it will be good for business, because it will be quicker and more efficient to get permits. Because it's a new rulemaking, people are under the impression they will be regulated and weren't before. We're finding that people were already regulated, but they just didn't know it. Waters on their property were already waters of the U.S. That's not what we're changing. It's coming up in agriculture, for example, where farmers were unaware that they had waters of the U.S. on their property. That doesn't mean they're regulated because they're exempt and excluded in many cases. It depends on the practices. In many cases they're exempt and those exemptions are being retained. A farmer may be learning that their irrigation ditch serves as a tributary to waters of the U.S., and it always was covered under waters of the U.S."
Renny Mackay, communications director for Wyoming Governor Matt Mead said, "Governor Mead is concerned about this proposal broadening the definition of the waters of the United States. This proposal infringes on states' rights and responsibilities. There appear to be particular ramifications for those in ranching and farming. Governor Mead has provided preliminary concerns and has asked the EPA for an extension to the comment period to provide for a more thorough review and analysis of the proposal. The lack of outreach by EPA compounds the complexity of the proposal."
Mackay also said Mead is aware of Johnson's case. "Governor Mead is following the situation," he said. "The existing definition of the waters of the United States raises a question about the EPA's authority in this matter. Governor Mead will continue to follow this matter and work with the EPA on a reasonable resolution."
Johnson plans to keep fighting to keep his pond, and has received support from all over the country, including from many elected officials in Washington, D.C. "I believe very, very strongly that private property is exactly that—private," Johnson said. "We absolutely love living the country life. We just want to work, pay our taxes, raise our kids and be left alone."