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.”