EPA Attacks Wyo Farmer’s Stock Pond – and his Rights

By Jonathan Wood, Pacific Legal Foundation Lead Counsel

A southwest Wyoming farmer needed to build a stock pond to provide water for his livestock. But, in discussions with state and county permitting departments, he decided that he’d also make sure his pond provided broader environmental benefits. The pond that he built now provides habitat for fish, moose and a bald eagle. It created wetlands where there’d been none, and it filters the water that passes through it by allowing sediment and other materials to settle.

This sounds praiseworthy, right? You’d think so. But that’s probably because you aren’t familiar with the myriad ways that federal bureaucrats abuse the hopelessly vague and far-reaching Clean Water Act. Instead of praising Andy Johnson, the farmer from Fort Bridger, the Environmental Protection Agency (EPA) sent him an order accusing him of violating that statute and threatening him with $37,500 per day in fines unless he removed the pond and let EPA dictate how he uses his property.

The intentions behind the Clean Water Act were undeniably good. It sought to protect major waterways – referred to as “navigable waters” in the Act – from pollution. But EPA and the Army Corps of Engineers have stretched the statute far beyond anything Congress could have intended.

As Supreme Court Justice Samuel Alito put it, “The combination of the uncertain reach of the Clean Water Act and the draconian penalties imposed for … violations … leaves most property owners with little practical alternative but to dance to the EPA’s tune.”

Johnson’s case is a particularly stark example of that abuse, not only because he did something that was good for the environment and clean water but also because the Clean Water Act expressly says that stock ponds like his are exempt from the statute’s elaborate – i.e. expensive and time-consuming – permit regime. But that didn’t stop EPA from threatening Johnson with massive fines, which, in the year he’s spent trying to explain to EPA that it has overstepped, have already grown to more than $16 million.

That’s pretty terrifying for a small, hardworking farmer trying to provide for his growing family. And that’s the point. Johnson is only the latest in a long line of property owners whom EPA has tried to strong-arm with illegal compliance orders. Until recently, EPA got away with this by barring people from challenging these orders. But three years ago, in a case brought by Pacific Legal Foundation, the Supreme Court of the United States held that every property owner subjected to such threats is entitled to a day in court.

Since that decision, EPA has been sued numerous times for abusive compliance orders and often backed down rather than defending its illegal actions. For instance, two years ago, Pacific Legal Foundation represented a New Mexico property owner who removed trash from a dry ditch that crossed his property, only to be threatened by EPA. According to the agency, the ditch – in the middle of the desert – was a “water of the United States.”

You read that right. Shortly after the complaint was filed, EPA caved. Makes you wonder how much the agency abused compliance orders during the decades when property owners had no right to challenge them, doesn’t it?

Johnson, too, is taking EPA to task. Also represented by Pacific Legal Foundation, he recently filed a lawsuit against the agency arguing that his pond is exempt from the Clean Water Act and the compliance order’s threats of ruinous fines for creating an environmental benefit are absurd and illegal.

Johnson isn’t only standing up for himself, though. He’s also fighting so that other farmers and ranchers who rely on the Clean Water Act’s exemption for their ponds can’t be bullied by federal bureaucrats.

This is no small ordeal. Every day that passes before the courts finally strike down this compliance order is another $37,500 hanging over Johnson’s head. If this case goes all the way up to the Supreme Court – as many such important cases do – he will likely be facing tens of millions dollars in fines, all for creating an environmentally friendly pond on his private property. Something has gone terribly wrong when a statute intended to clean up our waters is being used to threaten someone for doing just that.

Jonathan Wood is a staff attorney with Pacific Legal Foundation (PLF) and lead counsel in PLF’s lawsuit against the EPA on behalf of Andy Johnson.