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The PJ Tatler

by
Bridget Johnson

Bio

March 13, 2014 - 9:26 am

Senators are trying to intervene on behalf of a Wyoming landowner facing $75,000 a day in Environmental Protection Agency fines for building a stock pond on his own property.

The EPA compliance order against Andrew Johnson of Uinta County claims that he violated the Clean Water Act by building a dam on a creek without a permit from the Army Corps of Engineers. Johnson says it was a stock pond, which would make it exempt from CWA permitting requirements. The EPA is telling him to restore the creek as it was or face penalties.

Environment and Public Works Committee Ranking Member David Vitter (R-La.), along with Sens. John Barrasso (R-Wyo.) and Mike Enzi (R-Wyo.), wrote the EPA’s Acting Assistant Administrator for Water Nancy Stoner yesterday to ask that the agency back off from intimidating the landowner.

“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,” they 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.  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.  As it stands now, EPA’s failure to demonstrate in detail how Mr. Johnson’s building activities constituted the construction of a dam prejudices his opportunity to meaningfully respond to the Compliance Order.”

The EPA’s action was initiated soon after controversy brewed on the Hill over the EPA’s proposed rule redefining “waters of the United States” in the Clean Water Act to include all ponds, lakes, wetlands and natural or manmade streams that have any effect on downstream navigable waters — whether on public lands 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’,” the senators 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.”

Vitter, Barrasso and Enzi argued that the compliance order “unfortunately perpetuates ‘the high-handedness of the agency.’”

“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,” they wrote. “As EPA provided Mr. Johnson with only ten calendar days to respond its Compliance Order, we trust that the agency is capable of responding within a similar timeline.”

Bridget Johnson is a veteran journalist whose news articles and opinion columns have run in dozens of news outlets across the globe. Bridget first came to Washington to be online editor at The Hill, where she wrote The World from The Hill column on foreign policy. Previously she was an opinion writer and editorial board member at the Rocky Mountain News and nation/world news columnist at the Los Angeles Daily News. She is an NPR contributor and has contributed to USA Today, The Wall Street Journal, National Review Online, Politico and more, and has myriad television and radio credits as a commentator. Bridget is Washington Editor for PJ Media.

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Top Rated Comments   
I have to wonder if the park service wants his land and they're using their buddies at EPA to bankrupt him into selling it.
24 weeks ago
24 weeks ago Link To Comment
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All Comments   (8)
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Back in the mid 80's we had a drought. Our stock pond, built in the 20's, went dry. The Pa DEP wanted to fine me for the creek not running below the dam. I asked them if I could dredge it while it was empty. They laughed and said I'd need to build Noahs Ark before the permits got thru, and the paperwork would cost as much as doing the actual work. They actually laughed in my face and were so condescending. But things just got ugly when I told them "At least I don't need a no account, Gov't teet sucking job".
23 weeks ago
23 weeks ago Link To Comment
Fema Flood Plain map Panel 56041C0595C UNITA CO UNINC & INC AREAS 02/17/2010 https://msc.fema.gov/webapp/wcs/stores/servlet/FemaWelcomeView?storeId=10001&catalogId=10001&langId=-1

No Flood Plain

US National Wetlands Inventory
http://www.fws.gov/wetlands/Data/Mapper.html

Interesting that only this property is listed as an "emergent wetland" but not his neighbors up or down the dry creek that is surrounded by desert. He made the mistake of cultivating trees and brush to conserve the soil.

Now children, remember if you pick up a handful of sand or a rock out of creek and put it back, you are discharging and in violation of federal law.
24 weeks ago
24 weeks ago Link To Comment
Wait, I thought we were banning Bossy?
24 weeks ago
24 weeks ago Link To Comment
Thank you for the link to the compliance order. It actually clarifies the situation: he dumped 12 cubic yards of material into the creek, diverting its flow. Sure, he got OK to build a stock pond, but not to divert the water. That affects the health of the creek and the water flow to other landowners downstream. Why not just let the pond fill naturally with rainwater?
24 weeks ago
24 weeks ago Link To Comment
Because catching the rainwater is the same as diverting it. The creek still runs...when there is any water during rainy season. If the water is diverted 5 feet yet still runs back to its natural course, then how is "health" affected. EPA will have to prove this scientifically, not just because.
24 weeks ago
24 weeks ago Link To Comment
I have to wonder if the park service wants his land and they're using their buddies at EPA to bankrupt him into selling it.
24 weeks ago
24 weeks ago Link To Comment
If I were elected president, drastically pruning the EPA would be one of my first actions.
24 weeks ago
24 weeks ago Link To Comment
My first order would be to dissolve the National Public Broadcasting funds. I would not even let donations be tax deductible...

because my first, most important goal would be aimed at reclaiming the culture.
24 weeks ago
24 weeks ago Link To Comment
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