2 years ago

PLF challenges EPA's threat of massive fines against innocent property owner for improving the environment

By Jonathan Wood Attorney

Andy Johnson owns eight acres of land in Fort Bridger, Wyoming, where he’s made his family’s home and raises livestock. A small stream crosses his property and provides water for his livestock, as it has for prior owners going back decades. In 2012, he erected a small dam on the stream to create a stock pond to provide more reliable, safer access to water for his animals.

However, in creating that stock pond, Andy didn’t only think about the pond’s benefits for his animals. He also sought to maximize its incidental environmental benefits. And he was incredibly successful. Wetlands and riparian areas sprang up around the pond. It provides scarce, quality habitat for fish and a water source for wildlife, including a bald eagle. And, by allowing the water to pool before proceeding downstream, it cleans the water that passes through it.

What’s your reaction to Andy’s decision? Your instinct — like mine — is probably to praise him.

Unfortunately, that’s not how EPA responded. Instead, it sent him a compliance order accusing him of violating the Clean Water Act. (Ironic, isn’t it, that EPA’s accusation is based on a project that cleans water?) The compliance order threatens Andy with fines of up to $37,500 per day if he doesn’t remove the pond and bend to EPA demands.

It gets worse.

Setting aside the absurdity of punishing someone for benefiting the environment, EPA’s threats are illegal. The Clean Water Act expressly exempts work related to the “construction or maintenance of farm or stock ponds” from its broad reach. Andy’s pond clearly falls within this exemption. As mentioned above, he raises horses and cattle on his property who drink from the pond. Before constructing the pond, he obtained a permit from the state which expressly states that it is for stock watering purposes. But EPA didn’t let its lack of any authority stop it from issuing this coercive threat.

It’s difficult to imagine being in Andy’s shoes. He’s done nothing wrong. Yet EPA has threatened him with massive fines — approximately $20 million to date, but increasing with every passing day — which would cause him and his family financial ruin. Like just about everyone, Andy wasn’t familiar with the obscure intricacies of the Clean Water Act when he built his pond. He assumed that he was free to use his private property however he wanted, so long as he didn’t bother anyone else.

How would you respond if your family was similarly threatened? When Andy received this compliance order, he sought the advice of an expert. He asked a former enforcement officer for the U.S. Army Corps of Engineers (which has primary responsibility for administering the Clean Water Act) to look at the pond and tell him whether he’d done anything illegal and how to fix it if he had.

That expert, Ray Kagel, prepared several reports documenting that the pond is exempt from the statute and, therefore, Andy did nothing wrong. It also proved all of the environmental benefits that Andy had created. These reports were shared with EPA in the hopes that they’d relent. But EPA hasn’t backed down.

On August 27th, PLF filed a challenge to the compliance order on Andy’s behalf. As the complaint explains, EPA’s actions here are indefensible. His pond is exempt. EPA has been shown proof of it. But still it allows the fine to continue to mount. Why?

Threats of massive fines like these are unbelievably coercive. Even someone who has done nothing wrong would have to be extremely courageous to stand up to them. Doing so doesn’t only bet the proverbial farm, but also your family’s future.

Something has gone seriously wrong when unaccountable bureaucrats are able to wield such power, particularly in cases like this, where that power is being used contrary to the law’s purpose. As Ray Kagel’s reports explain, there are no negative environmental impacts from the pond. All of its effects are positive. The only reason for EPA to go after Andy then is that he used his private property without first seeking permission from bureaucrats in Washington. If they have their way in this case, we’ll have less clean water but more federal control. Is that the purpose of the Clean Water Act?

To learn more about the case, please check out our case page, press release, video and podcast.

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Johnson v. Environmental Protection Agency

Andy Johnson built a stock pond on his Wyoming property to provide safer, more reliable access to water for his small herd of cattle. More than the cows benefitted: The pond created wetlands, habitat for fish and wildlife, and cleans the water that passes through it. Nonetheless, the federal EPA accused Johnson of violating the Clean Water Act, demanded that he rip out the pond, and threatened him with fines of $37,500 per day if he did not comply. PLF represented Johnson in a lawsuit against the EPA because “stock ponds” are explicitly exempted from Clean Water Act jurisdiction. The government agreed to settle – the pond stays and Johnson pays no fine so long as he plants willows around the pond and builds temporary fencing to limit the cattle’s access.

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