October 5, 2015

Congress questions EPA about Andy Johnson's stock pond

By Jonathan Wood Attorney

Several weeks ago, the New York Times ran a front page article about the Andy Johnson’s stock pond and the EPA compliance order threatening him with more than $16 million in fines. Here’s a taste:

The sun was sinking and the brook trout were biting, so Andy Johnson and his daughter Aspen, 6, stepped onto their sun-bleached pier, hooked some mealworms and cast their lines into the most infamous pond in the West.

It is just a splotch of placid water amid endless ripples of grazing land here in western Wyoming. But in the two years since Mr. Johnson dammed a small creek running through his front yard to create the pond, it has become an emblem for conservative groups and local governments that are fighting what Senator Michael B. Enzi called a “regulatory war” with the Obama administration over environmental issues ranging from water quality to gas drilling, coal power plants to sage grouse.

“It makes no sense whatsoever,” Mr. Johnson said, pointing at the waving grasses and birds pinwheeling around the water. “We have wetlands now. I really think the E.P.A. should be coming in and saying, ‘Good job.’”

You can read the rest here.

As you may recall, PLF has filed a lawsuit on Andy’s behalf challenging the compliance order. We argue that this heavy-handed compliance order, with its threat of ruinous fines, is illegal because Congress expressly exempted “stock ponds” from the reach of the Clean Water Act. EPA didn’t let that stop it from intruding thin this family’s life. This bullying makes even less sense when you take account of the fact that the pond is an environmental boon. It’s created wetlands, habitat for fish and wildlife, and cleans the water that passes through it.

The New York Times article has caught the attention of Congress. Last week, in a Senate hearing on the new Waters of the United States (WOTUS) rule, Senator Barrasso of Wyoming asked the Assistant Secretary of the Army, whose Corps of Engineers administers the Clean Water Act, about the case.

This is abysmal. And when the EPA, through its actions, get talked about in the front page of the New York Times with an article about Wyoming, you can tell how much overreach is here. 

Any answer to this? 

He didn’t get one.

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Waters of the United States

In 2015 PLF challenged the Environmental Protection Agency’s proposed rule to stretch federal control to nearly every pond, ditch, and puddle in the nation as nothing more than an outrageous—and illegal—power grab under cover of the Clean Water Act. And under the Act, people who are harmed by such rules have six years to sue in federal district court. That is, until the EPA rewrote the rule, trying to prevent legal action by giving property owners just 120 days to sue, and then only in federal appellate courts. On January 22, 2018, the U.S. Supreme Court rejected the EPA’s power play and unanimously ruled for PLF and property rights. The High Court agreed with PLF that the EPA cannot shelter its “waters of the United States” rule from judicial review by arbitrarily limiting where victims can sue.

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