Wyoming welder faces $75,000 a day in EPA fines for building pond on his property
Published March 14, 2014
All Andy Johnson wanted to do was build a stock pond on his sprawling eight-acre Wyoming farm. He and his wife Katie spent hours constructing it, filling it with crystal-clear water, and bringing in brook and brown trout, ducks and geese. It was a place where his horses could drink and graze, and a private playground for his three children.
But instead of enjoying the fruits of his labor, the Wyoming welder says he was harangued by the federal government, stuck in what he calls a petty power play by the Environmental Protection Agency. He claims the agency is now threatening him with civil and criminal penalties – including the threat of a $75,000-a-day fine.
“I have not paid them a dime nor will I,” a defiant Johnson told FoxNews.com. “I will go bankrupt if I have to fighting it. My wife and I built [the pond] together. We put our blood, sweat and tears into it. It was our dream.”
But Johnson may be in for a rude awakening.
The government says he violated the Clean Water Act by building a dam on a creek without a permit from the Army Corps of Engineers. Further, the EPA claims that material from his pond is being discharged into other waterways. Johnson says he built a stock pond — a man-made pond meant to attract wildlife — which is exempt from Clean Water Act regulations.
The property owner says he followed the state rules for a stock pond when he built it in 2012 and has an April 4-dated letter from the Wyoming State Engineer’s Office to prove it.
“Said permit is in good standing and is entitled to be exercised exactly as permitted,” the state agency letter to Johnson said.
But the EPA isn’t backing down and argues they have final say over the issue. They also say Johnson needs to restore the land or face the fines.
Johnson plans to fight. “This goes a lot further than a pond,” he said. “It’s about a person’s rights. I have three little kids. I am not going to roll over and let [the government] tell me what I can do on my land. I followed the rules.”
Johnson says he was “bombarded by hopelessness” when he first received the administrative order from the EPA. He then turned to state lawmakers who fast-tracked his pleas to Wyoming’s two U.S. senators, John Barrasso and Mike Enzi, and Louisiana Sen. David Vitter.
The Republican lawmakers sent a March 12 letter to Nancy Stoner, the EPA’s acting assistant administration for water, saying they were “troubled” by Johnson’s case and demanding the EPA withdraw the compliance order.
“Rather than a sober administration of the Clean Water Act, the Compliance Order reads like a draconian edict of a heavy-handed bureaucracy,” the letter states.
The EPA order on Jan. 30 gave Johnson 30 days to hire a consultant and have him or her assess the impact of the supposed unauthorized discharges. The report was also supposed to include a restoration proposal to be approved by the EPA as well as contain a schedule requiring all work be completed within 60 days of the plan’s approval.
If Johnson doesn’t comply — and he hasn’t so far — he’s subject to $37,500 per day in civil penalties as well as another $37,500 per day in fines for statutory violations.
The senators’ letter questioned the argument that Johnson built a dam and not a stock pond.
“Fairness and due process require the EPA base its compliance order on more than an assumption,” they wrote. “Instead of treating Mr. Johnson as guilty until he proves his innocence by demonstrating his entitlement to the Clean Water Act section 404 (f)(1)(C) stock pond exemption, EPA should make its case that a dam was built and that the Section 404 exemption does not apply.”
The EPA told FoxNews.com that it is reviewing the senators’ letter. “We will carefully evaluate any additional information received, and all of the facts regarding this case,” a spokeswoman for the agency said.
The authority of the EPA has recently been called into question over proposed rule changes that would redefine what bodies of water the government agency will oversee under the Clean Water Act.
The proposed changes would give the agency a say in ponds, lakes, wetlands and any stream — natural or manmade — that would have an effect on downstream navigable waters on both public land and private property. “If the compliance order stands as an example of how EPA intends to operate after completing its current ‘waters of the United States’ rulemaking, it should give pause to each and every landowner throughout the country,” the letter states.
For now, the matter remains unresolved. Johnson says he’s not budging and there’s been no indication from the EPA they will withdraw the compliance order.
Regardless of the outcome, Johnson says his legal fight with the government agency is a teachable moment for his kids
“This is showing them that they shouldn’t back down,” Johnson said. “If you need to stand up and fight, you do it.”