Environmental Protection Agency

Wyoming Farmer Sues EPA Over $16 Million in Potential Fines Over Building Drinking Water Pond for His Livestock

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With the help of the Pacific Legal Foundation (PLF), Wyoming farmer Andy Johnson is suing the Environmental Protection Agency (EPA) in federal court in Wyoming over their insistence that he needed a federal permit to build a stock pond on his land in 2012.

Andy Johnson and family

He's facing $37,500 in daily fines from EPA threat unless and until he "restore[s] the property to its prior condition pursuant to a federally approved restoration and mitigation plan." That fine hanging over his head is now above $16 million.

Summary and commentary from the lawsuit as filed about why Johnson thinks the EPA is out of line:

Before constructing the stock pond, Johnson obtained all the necessary state and local permits. He performed the work himself and took every care to maximize the pond's incidental environmental benefits….

Why should the Feds step in? 

Section 404 of the [Clean Water] Act, 33 U.S.C. § 1344, authorizes the issuance of federal permits for the discharge of dredge and fill material, i.e., rocks or soils, into the navigable waters of the United States. Subsection "f" of Section 404, 33 U.S.C. § 1344(f), contains a list of activities that result in discharges of dredge and fill material that are exempt from regulation under the Clean Water Act. This list includes discharges "for the purpose of construction or maintenance of farm or stock ponds." 33 U.S.C. § 1344(f)(1)(C).

The only way an exempt activity can become subject to the act's requirements is if it both (a) is for the purpose of bringing an area of the navigable waters into a use to which it was not previously subject, and (b) impairs the flow or circulation or reduces the reach of navigable waters…

The suit goes on to explain how the Supreme Court's 2006 Rapanos v. U.S. case defined the waters over which the federal Clean Water Act has hold, and they insist that Johnson's pond is not the sort of water the feds have any jurisdiction over:

Johnson's construction of a stock pond on his private property, and any associated deposit of dredge and fill materials, is exempt from regulation under the Clean Water Act. Johnson did not change the use of this water, which has long been a source of water for his and prior owners' livestock. Nor did he impair the flow or circulation or reduce the reach of any navigable water.

Johnson's construction of a stock pond is also beyond the reach of the Clean Water Act because six-mile creek is not a "water of the United States." The water that flows over Johnson's property is return flow from upstream agricultural users as it makes its way to a controlled irrigation canal and reservoir. It is not a tributary of any traditional navigable water nor is there any significant nexus between it and any traditional navigable waters.

EPA's compliance order—which determines that Johnson's construction of a stock pond on his private property violated the Clean Water Act—is therefore arbitrary and capricious, and contrary to law.

Johnson wants to get the EPA to admit it has no jurisdiction over his pond, stop threatening him, and pay his legal fees.

The Pacific Legal Foundation's press release announcing the suit with some juicy states v. fed authority details:

"For more than a year, Andy Johnson has sought to explain EPA's error to it," said [PLF attorney Jonathan] Wood.  "He provided them a report on the project prepared by a former Army Corps of Engineers enforcement officer that lauds its many environmental benefits.  Of course, he pointed to his receiving all the necessary state and local permits.  But EPA won't budge, or even explain why it should be able to ignore the law's exemption for stock ponds."

Indeed, the EPA continues its crusade against Johnson even though Wyoming state officials have said that he complied with all state requirements.  The state engineer, for instance, says that Andy's state permit is "in good standing and entitled to be exercised exactly as permitted."

Gov. Matt Mead, in a statement, said:  "Mr. Johnson permitted and constructed his stock water pond appropriately. … The actions of the EPA in regard to Mr. Johnson have been heavy-handed."

Shikha Dalmia in Reason on the roots of the Rapanos case.

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  1. Sovereign Immunity, bitches! (a.k.a the FYTW clause)

    1. Pretty much. Fuck the goddamned EPA.

    2. “It’s just been revoked!”

  2. “But EPA won’t budge, or even explain why it should be able to ignore the law’s exemption for stock ponds.”

    Explain? What do you think administrative law is for?

    1. It’s almost as though they think the EPA answers to anybody.

    2. What’s disturbing to me is that there doesn’t seem to be an exemption for stock ponds per se. Only a very unusual situation where this pond is built on something that just happens to not be navigable.

      If stock ponds are generally subject to EPA jurisdiction . . . holy shit. Anyone running stock in dry country needs them, is constantly building and/or maintaining them. To have to go to the EPA or risk losing everything is just beyond insane.

  3. Before constructing the stock pond, Johnson obtained all the necessary state and local permits.

    Obviously I hope the man prevails against the EPA. But even if he does, we’re still left with the question of why a man should have pay for permission to construct a pond on his own property.

    1. Because of the myth of public goods.

  4. Why doesn’t the governor gin up some reason to arrest a bunch of the EPA folks? Or just maybe some other Feds in state who are certainly breaking some local ordinance or other? Tit for tat.

    1. Or hell, just arrest them for something they aren’t doing, if we wanna go really tit for tat… 😀

    2. Maybe just schedule a small national guard exercise at this guy’s ranch?

    3. “You fellas won’t mind if I just have a quick look through your vehicle, will you? Or, we can wait for a canine unit if you prefer, because to be frank, I am detecting the smell of marijuana emanating from your vehicle.”

      *plants baggie*

      1. *plants baggie* *detects furtive move*

        FTFY

        1. *also detects furtive movement*

          /EPA SWAT team

          1. *grabs popcorn*

            /me

            1. It’s furtive movements all the way down!

    4. Enforcers don’t enforce the law on fellow enforcers.

      1. Sometimes they do! I’ve heard of some serious bitch-fights between, say, City Cops and Statey Cops. Of course, they don’t do it on behalf of the peons, but they do fight sometimes. You know, like most gangs…

  5. O/T: Jerry Seinfeld learns what kids everywhere have known for ages — http://newyork.cbslocal.com/20…..ade-stand/

    Cops Hate Lemonade

    1. Jan ? 2 minutes ago

      Did these kids have a city business license, food handling permit, registered with the Department of Revenue as a business, documented their earnings in what % will go to charity and what will go for operating expenses or profit? The laws apply to everyone, especially children handling food for public consumption.

      1. People like that really deserve an unpleasant fate.

        1. Fire up the chipper…

      2. That comment section is a cesspool, but I have to admit this one made me laugh:

        Yeah Right ? an hour ago
        Good thing for lemonade stands, they keep cops from killing black people.

        1. They have black people in the Hamptons?

          1. Someone has to clean up after Gatsby.

            1. Well said, old sport

      3. The laws apply to everyone, especially children handling food for public consumption.

        WTF is wrong with people? Jesus Christ, if you’re that afraid of the little kiddies mishandling your food (lemonade is food now?), then don’t fucking buy from them. It’s not like you can’t tell they’re children.

    2. At least the cops didn’t steal the money that the stand earned. They often do that. After all, any money obtained without permission of the king is forfeit to the king’s men.

  6. He’s facing $37,500 in daily fines from EPA threat unless and until he “restore[s] the property to its prior condition pursuant to a federally approved restoration and mitigation plan.” That fine hanging over his head is now above $16 million.

    Something, something, punishment fitting the crime, something…

    1. The part that they don’t get is this:

      Government doesn’t know what stuff costs. It’s not their fault, they don’t deal with the market so they have no information about it (Mises, Heyek).

      So they charge WAY too much on these “fines” (for something that doesn’t violate NAP, but that’s another question). What they don’t understand is this, if you charge me $100,000 a day, I have absolutely zero reason to listen to them. I don’t have $100,000. What more does it hurt me if they threaten to charge me for 99 more days? I don’t have $100,000, let alone $10 mil.

      Basically, they are incentivising civil (or uncivil) disobedience by having no idea what to fine someone. They can go on believing I “owe” them $10 mil + $100,000 a day ad inifinitum. I’ll just ignore them… or start shooting the people who come to “collect”. Then I’ll let the jury of my peers decide who was in the wrong.

      1. The point is to rob you of everything you own for daring to disobey them. They won’t stop until you’re homeless and on the streets. Then they’ll sic the local cops on you to add injury to insult.

        1. I knew a couple of guys who had a small cabinet shop together, and were one day hit with a 40K fine for not having their spray booth up to snuff. It’s unlikely that a two-man shop can absorb that kind of loss coming out of nowhere, so it becomes a matter of, a) are you able to borrow enough to get into compliance, and hopefully beg the fine down, or b) close up shop. And the EPA has no reason to care which it is.

          1. It’s one thing to bend over and pay the fine. You obeyed them so they’re happy. It’s quite another thing to defy them as these people have. Then it becomes personal, and they won’t stop until they shut you down completely, robbing you of everything you ever earned in the course of your life. They can’t get away with murder like cops, so instead of taking your life they will take all of your life’s work.

        2. Once again, the reason we have a 2nd amendment…

          Take my stuff… if you really think it’s worth it.

          1. Like Ruby Ridge and Waco?

            1. Bundy standoff.

              They want your stuff. Either let them take it or don’t.

              How many are willing to die so they can take my stuff? Lovers of government usually realize they aren’t true believers when they are faced with deadly force.

              1. Bundy standoff.

                That’s an outlier.

  7. Administrative law is an abomination. In a free country, a fine of $37,500 would require a criminal conviction. Of course, in a free country, the EPA and this bullshit law wouldn’t exist in the first place.

    1. You’re just saying that because you secretly want to bring back slavery.

    2. Any fine of 37.5k. Let alone a fine of 37.5k a DAY accumulating indefinitely.

      But if the courts find an excuse for asset forfeiture to be constitutional, I’m sure this is too, somehow.

    3. Who needs the Fifth, Seventh, or Eighth Amendments?

  8. Water law in the west is a goddam nightmare.
    And the EPA are Hell bent on making it worse.

  9. To EPA: Animas River. Now shut the fuck up about this guys pond.

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