Uinta County man fined by EPA for pond

After the Environmental Protection Agency (EPA) ordered Uinta County resident Andrew Johnson to dismantle a pond built on his property because it violates the Clean Water Act, Senators and citizens from Wyoming have jumped in to help Johnson fight the action.

EPA issued the Compliance Order against Johnson late last week, claiming that he violated the Clean Water Act by building a dam on a creek without a permit from the Army Corps of Engineers. 

They have also directed him to restore the creek as it was or face penalties – up to $75,000 per day.

Johnson argues that the pond is a stock pond he built in 2012, thus exempting it from the Clean Water Act.

An April 4-dated letter from the Wyoming State Engineer’s Office indicates he followed all state rules and regulations in building the stock pond. 

“Its not about me,” Johnson told the Casper Star Tribune. “It’s about everybody across America. We have people in an uproar from one end of the country to another.”

Building a pond

When Johnson first began construction on the pond in a section of Six Mile Creek that runs through his property, he applied for a permit from the Wyoming State Engineer’s Office and received approval for his construction plan. 

However, EPA asserts that the two-foot wide, six-inch deep section of the creek is a “water of the United States.”

Their definition of the body as a water of the U.S. is because Six Mile Creek is a tributary of Blacks Fork River, which is a tributary of the Green River. The relationship of the creek to larger waterways, claims EPA, makes it subject to Clean Water Act regulation. 

EPA first notified Johnson of potential fines in January 2013 after an October 2012 inspection of the pond by the Army Corps of Engineers. 

The agency also maintains that Johnson broke a law by failing to obtain an Army Corp of Engineers permit prior to construction.

Support in Washington

Environment and Public Works Committee Ranking Member David Vitter (R-La.), along with Wyoming Senators John Barrasso (R) and Mike Enzi (R) took action following the order from EPA by writing EPA’s Acting Assistant Administrator for Water Nancy Stoner.

“Rather than a sober administration of the Clean Water Act, the Compliance Order reads like a draconian edict of a heavy-handed bureaucracy. The Compliance Order also appears to rest on a broad assertion of federal jurisdiction under the Clean Water Act, offering an ominous signal of EPA’s intentions for its current ‘waters of the United States’ rulemaking,” the three wrote.

“EPA appears more interested in intimidating and bankrupting Mr. Johnson than it does in working cooperatively with him,” the senators noted of the severe fines Johnson faces. “Fairness and due process require that EPA base its Compliance Order on more than an assumption.”

Broader argument

At the crux of the issue is the continuing definition of “waters of the United States.”

Proposed rulemaking by EPA dictates a redefinition of “waters of the U.S.” to include all ponds, lakes, wetland and natural or manmade streams that have any effect on downstream navigable waters.

The definition in the proposed rule would regulate waters regardless of whether they were on public or private property.

“We are skeptical of the Compliance Order’s claim that Six Mile Creek – into which Mr. Johnson allegedly discharged dredged and fill material – ‘is and was at all relevant times a waters of the United States,’” Senators Barrasso, Enzi and Vitter continued. “EPA has an obligation to more fully support its claim that Six Mile Creek is a jurisdictional water.  If instead 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.”

Next steps

Johnson asserts that he will fight the agency’s order, commenting, “They are treating me as if I am guilty until I am proven innocent.”

Johnson is eligible to legally review the EPA decision and is likely to do so.

Additionally, the Senators said in their letter, “We ask also that EPA advise us in writing no later than March 24, 2014 as to whether the Compliance Order has been withdrawn. If the Compliance Order has not been withdrawn by that time, we request that EPA explain why it feels the Compliance Order is justified. As EPA provided Mr. Johnson with only 10 calendar days to respond to its Compliance Order, we trust that the agency is capable of responding within a similar timeline.”

This article was compiled from articles in the Casper Star Tribune, PJ Media and AP articles on the case. Look for more on this developing story in future editions of the Roundup.

Saige Albert is managing editor of the Wyoming Livestock Roundup and can be reached at saige@wylr.net.