EPA Pond

Man vs EPA: Uinta County man faces $75k in daily fines for his pond

2014-03-18T07:00:00Z 2014-03-18T10:30:04Z Man vs EPA: Uinta County man faces $75k in daily fines for his pondBy KYLE ROERINK Star-Tribune staff writer Casper Star-Tribune Online

Andy Johnson is the newest poster boy for anti-EPA sentiment.

The Uinta County man’s name went viral last week after the Environmental Protection Agency issued an administrative order demanding he dismantle a pond he built on his property in 2011.

The EPA claims Johnson violated the Clean Water Act by damming the middle of Six Mile Creek and polluting the water to build the pond. The agency is threatening Johnson with a $75,000 per-day fine -- a penalty often reserved for companies that emit toxic hazards.

The monetary threats haven’t shaken Johnson. He’s using the moment as a rallying cry.

He claims the EPA is using the Clean Water Act as a “political football” to regulate private landowners.

“It’s not about a pond,” he said. “It’s about national laws.”

The EPA maintains Johnson broke a law by failing to obtain a federal permit before constructing the pond. The agency says it's made several attempts to resolve the issue.

Johnson, a local welder, has been featured in national news stories. Nonprofit law firms are offering to help him fight his case in court. In a three-day period, he received more than 500 phone calls from ranchers, farmers and landowners from all across the country who are incensed about the EPA’s decision.

“It’s not about me,” he said. “It’s about everybody across America. We got people in an uproar from one end of the country to the other.”

Wyoming Republican Sens. Mike Enzi and John Barrasso joined with Sen. David Vitter, R-La., to partake in the outcry. The trio issued a letter to the EPA on Wednesday, asking the agency to lift the order.

The senators slammed the EPA move as a “draconian edict of a heavy handed bureaucracy.”

“The compliance order’s terms are crushing for an individual landowner,” the letter reads. “… The EPA appears more interested in intimidating and bankrupting Mr. Johnson than it does in working cooperatively with him.”

Pond ruckus

Not much was thriving in Johnson’s section of Six Mile Creek before he built the pond.

Today, his horses and livestock use the pond for drinking water. He often sees bald eagles, minks and ducks foraging on the banks. There’s also a flourishing population of brown trout, he said.

Johnson is hoping the ruckus will fade away so he can sponsor a youth fishing day at the pond.

“This pond has an environmental benefit on the community,” he said.

Before he began construction, Johnson thought he was playing by the rules.

He applied for a permit with the Wyoming State Engineer’s Office. The state approved his initial construction plans and issued a permit. After construction, the state said he was in good standing and “exercised” construction as permitted.

What Johnson didn’t know was that he needed to file a permit with the U.S. Army Corps of Engineers to build the pond.

The EPA requires projects on the “waters of the United States” to receive the Army permit. The EPA’s logic for deeming the two-foot wide and six-inch deep section of the Creek a part of the “waters of the United States” goes as follows: Six Mile Creek is a tributary of the Blacks Fork River, which is a tributary of the Green River. Because of Six Mile Creek’s relationship to the larger waterways, the EPA claims the creek is subject to the Clean Water Act.

Johnson argues that the creek’s waters are dispersed through irrigation canals and never make the nearly 100-mile journey to the Green River, he said.

“The pond doesn’t start in a river or end in a river,” he said.

Johnson started receiving letters from the EPA two years ago. They warned him the pond was potentially violating the Clean Water Act.

In October 2012, the Army Corps of Engineers inspected the pond and concluded he made a dam that resulted in the discharge of “dredged and fill material.” He received news of the potential fines in January.

Johnson describes the pond-making process like this: He dug a hole, lined the pond with large rocks and put a drain at the bottom. While he constructed the pond, the water flowed through the drain.

“It never stopped flowing,” he said.

When he was done building the pond, he closed the valve of the drain. Now the water flows out of the pond like a spillway, he said.

The EPA has received a backlash from the news about Johnson’s pond. He hasn’t heard anything from the agency since his story went national.

“The EPA’s goal in all of these cases is to work with landowners to secure compliance with the Clean Water Act,” the agency said Monday. “Following the Corps’ determination in 2012, EPA made several attempts to discuss and resolve these issues with Mr. Johnson. EPA issued a compliance order in January only after several failed attempts to do so. We also made Mr. Johnson aware of the opportunity to seek judicial review of the order at that time.”

Johnson is eligible to legally review the EPA decision and is likely to do so. Before receiving offers to help him litigate his case, Johnson said he would go “bankrupt” fighting the agency.

“They are treating me as if I am guilty until I am proven innocent,” he said.

Copyright 2015 Casper Star-Tribune Online. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

(22) Comments

  1. Couchpotato
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    Couchpotato - March 26, 2014 3:02 pm
    leave this hard working tax payer alone. Let's focus on those doing neither
  2. Campbell
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    Campbell - March 26, 2014 11:13 am
    I may get crucified for stating this, but oh well. :) i am a conservative who supports state's rights, but I also see the need for some unifying Federal government, as did most of the founding fathers.

    Water knows no borders and everyone needs some of it. Since it flows across state lines and everyone recognizes the problem inherent in a state such as Wyoming in damming up every river at the border to hoard all of it, this seems like one of the few things the government should regulate. Should it be the EPA? Maybe not; different argument from what I am stating here. Seems to me that like or not the Federal system in place, it should be something under Federal purview since it crosses state lines. I feel the fellow should have played ball and known what he needed to do. If his intent was to make a point he is doing so and reaping what comes with it. I wish him the best, however
  3. wygent
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    wygent - March 20, 2014 8:09 am
    To all those who are supporting EPA and ACE, the issue here is not whether this guy violated their rules or whether they gave him notice or any of that. At issue is whether it is reasonable for the Army Corps of Engineers and its enforcement organ, the EPA to try to exert absolute control over every single piece of wet ground in the USA regardless of whether it is public or private, large or small, flowing or still, salt, brackish or fresh, or even recognizable to the average citizen.

    The notion that because this small water source might someday contribute a few gallons of water per day to the Green River System, it falls under the purview of the Corps of Engineers is ludicrous. As the old adage says -" Water runs down hill." so all water will wind up in SOME navigable stream or other. That means that every drop of water in the United States of America is under the purview of the Corps of Engineers and, in turn, the EPA.

    That policy, long the holy grail of the environmental lobby, because it will totally cripple agriculture, the entire recreation industry and all other industry for that matter, cannot be allowed to become accepted case law, policy or fixed principle. It would essentially destroy the entire concept of private ownership of real property in the US.

    So it really doesn't matter whether the EPA gave notice or the ACE wants to negotiate - there can BE no negotiation on this matter. The ACE does NOT own every drop of water in the USA and it cannot be allowed to pretend it does.
  4. shelleypowers
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    shelleypowers - March 19, 2014 7:05 pm
    Apologies, that link was to the creek in New York.

    But all this type of information is public record and typically available online. Google first before hitting the FOIA.
  5. shelleypowers
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    shelleypowers - March 19, 2014 6:58 pm
    Why don't you just Google, first.

  6. shelleypowers
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    shelleypowers - March 19, 2014 6:27 pm
    Excellent response. Unfortunately, people are reacting to the seeming David in this "David vs Goliath", which is then used as just another attack against agencies only attempting to do the job they've been mandated by Congress to do.
  7. shelleypowers
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    shelleypowers - March 19, 2014 6:26 pm
    Actually, you didn't provide the most important link: to the EPA letter that went with the violation document. It explains a lot.

    http://yosemite.epa.gov/oa/rhc/epaadmin.nsf/filings/6c6ec0f783d2b53985257c7c00214564/$file/cwa%2008%202014%200012%20ao.pdf (PDF)
  8. shelleypowers
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    shelleypowers - March 19, 2014 6:15 pm
    I do appreciate that you provided links to the documents.

    The Army Corps of Engineers and the EPA attempted to contact this man multiple times, and he didn't respond.

    The amount quoted is a standard amount that the EPA is required to give, by regulation.

    This "little creek" is actually significant enough to feature in Google maps. And he dammed it, which not only negatively impacts on down river water access, it impacts on the man's neighbors--who now, no longer have access to an unobstructed creek.

    Less focus on the money and little more attention should be paid to this man's belligerence towards the agencies whose main job is protecting our water. _Our_ water.

    More on the story

    Report Abuse
    WYO-BILL - March 18, 2014 8:56 pm
    Maybe he should have gotten an Army Corps permit, but how does EPA push their nose into this? Did they document his so called 'pollution' by taking water samples downstream during the construction? Even then, his 'pollution' would have been no more than a WYO gully washer with all the muck in it that we get every year. I thought Army Corps permits were required for navigating streams and a 2 foot wide ditch does not qualify for even a child's inner tube.

    Cody Coyote: You sound like an Army Corps or EPA brat. Thanks for the info so when conservatives take back the country we will be sure to look up the 404 section and repeal it along with EPA federal codes.
  10. ybnormal60
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    ybnormal60 - March 18, 2014 7:25 pm
    Good Evening Mr. Roerink

    Just for fun, you might consider filing a FOIA (freedom of information act) request to verify what you have been told by EPA and the Corps of Engineers about Mr. Johnson's situation. You may also FOIA fines levied by EPA for Wyoming to verify their enforcement history. While your at it FOIA the Corps of Engineers historical flow rate for Six Mile Creek. I sure this information is available and you can keep the readers of the Casper Star Tribune and the citizens of Wyoming informed.
  11. GideonCain
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    GideonCain - March 18, 2014 5:59 pm
    Wyoming State Constitution, Article 8, Section 1: 'The water of all natural streams, springs, lakes or other collections of still water, within the boundaries of the state, are hereby declared to be the property of the state.' This was a condition of the contract entered into by the State of Wyoming and the federal government when Wyoming entered the union. We may have ceded control of the rivers to the federal government, but Mr. Johnson did not dam a river, he dammed a stream, which falls under state control. Mr. Johnson complied with the law.
    Wyoming State Constitution, Article 1, Section 6: 'No person shall be deprived of life, liberty or property without due process of law.'
    United States Constitution, Amendment 5: 'No person shall...be deprived of life, liberty or property, without due process of law...'
    Money is property, and I do not believe that Mr. Johnson has been given his day in court to argue his case, therefore the imposition of fees and fines by the EPA is unconstitutional. There are also the pesky 9th and 10th amendments to the U.S. constitution, which place strict limits on the federal government.
    I stand with Andy Johnson.
  12. Letsgetreal
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    Letsgetreal - March 18, 2014 3:48 pm
    Yes, according to current law, he should have had a 404 permit to put fill material in a water of the US,and should be given a reasonable fine consistent with the one-time violation that occurred, similar to a speeding ticket. Threatening fines of $75K per day for an activity that is no longer occurring is just another example of over-reach by the out of control Obama administration. How many tens of thousands of dollars in EPA, USACOE and attorney wages will be wasted fighting what should have been a simple fine for a one-time violation?
  13. James Madison
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    James Madison - March 18, 2014 1:26 pm
    The problem is this isn't a water rights issue among Wyoming land owners, or even State of Wyoming versus Montana.

    This is pure and simple illegal federal overreach and a discussion of the constitutional legality of the Army Corp of Engineers that have clearly expanded it's original intent of being established as a military academy in New York.

    Not to mention the legality of the EPA and it's illegal abusive overreach in such cases.

    This is a Wyoming issue inside Wyoming borders, a Wyoming resident obtained a permit and no crime has been committed.

    Will we see Matt Mead stands up for Wyoming as a former federal prosecutor and nullify this action? Nope he is busy working hard to import international refugees and trips to China and Australia with University of Wyoming staff to concern himself with issues inside Wyoming's borders.

    Tax the peasants on gas while Mead feasts in exotic lands like a King.

  14. James Madison
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    James Madison - March 18, 2014 1:17 pm
    Yes, and if you had been in America in 1776, you would have been the first to surrender your rifle and property to the British while they quartered their troops in your home.

    If you don't stand for principle and submit, you lose your liberty.
  15. James Madison
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    James Madison - March 18, 2014 1:14 pm
    "The Corps of Engineers as it is known today came into being on 16 March 1802, when President Thomas Jefferson was authorized to "organize and establish a Corps of Engineers ... that the said Corps ... shall be stationed at West Point in the State of New York and shall constitute a Military Academy."

    What we have today is not a military academy. What we have today is what the framers warned of a government monstrosity growing tentacles that has grown unrestrained.

    I urge Cody and others who believe a Wyoming citizen, obtains a Wyoming permit and then is fined $75K a day and threatened criminal charges by the federal government.

    I urge Republican and Democrat progressives who believe everything the feds do is within their authority, to re-read the Tenth Amendment and read the letters of Jefferson before spouting such erroneous messages that suggest Jefferson himself would support such a blatant violation of the Tenth Amendment and usurpation of federal jurisdiction in the monstrosity called the EPA.
  16. dennydewclaw
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    dennydewclaw - March 18, 2014 12:18 pm
    Looks to me like we have way more government than we need here! Time to cut taxes so we can cut spending! Spending for absurdly ridiculous threats against a nice family who built a pond. Time to cut off the EPA who lets millions of acres of forest burn polluting our skies while they shut down our power plants because of "regional haze". The only thing hazy here is how we let our government under King Oblamo get so far out of control.
  17. LVHS77
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    LVHS77 - March 18, 2014 12:14 pm
    What happened to private property rights. He did nothing wrong. You must be a big fan of federal Tyranny.
  18. Ken deFarmer
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    Ken deFarmer - March 18, 2014 11:45 am
    Sounds like another anti-gov type .I did a dam and ponds project and went through all the hoops with the State and Army Corp. It's not big a deal when done upfront. Mr. Johnson was either too lazy or too anti-government to simple ask questions about what was needed. Now he cries. Call the Wah-mbulance.
  19. LVHS77
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    LVHS77 - March 18, 2014 11:35 am
    cody your hatred of anyone who is not an environmental zealot is not a Wyoming native value. MR. Johnson has done nothing wrong. The federallies, and their local supporters are the problem. I know that they know better than to step on mine and most Wyomingites property.
  20. jc45
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    jc45 - March 18, 2014 8:44 am
    I heard a long time ago that in Wyoming, whiskey is to drink and water is to fight over.
  21. Cody Coyote
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    Cody Coyote - March 18, 2014 8:08 am
    A little history. The US Army Corps of Engineers pre-dates America, being first employed in 1775 during the Revolution , and formalized by President Thomas Jefferson in 1802. The Lewis & Clark Expedition was as much an Army Corps expedition as anything.

    As such , the Army Corps has ALWAYS had authority over impoundments, diversions, waterworks etc etc etc , and especially any freeflowing waters or navigable waters anywhere in the USA. Nobody OWNS water...all water is licensed, permitted, regulated by
    use , not possession. That's because water is fluid, transient, temporal... it cannot be owned like other forms of " property" because water is not property. Doesn't matter if its on the ground or under it. You can rarely do with it as you please. Even rainwater collected in a cistern has some regulatory strings, should an agency choose to pull those strings.

    Anyone who has ever proposed a surface water project bigger than a one man - one shovel dig knows that the Army Corps 404 permit is required.

    As such ,this is neither a private property nor a State's Rights issue. Rather, the applicant and the states have to accede to the Army Corps in All Things Water. The States have to accede to the Army Corps in All Things Water. The State has to accede to the Army Corps in All Things Water. Got it?

    What Andrew Johnson has done her is gone around the law . He did not jump thru the Army Corps hoop . Doesn't matter of the Wyoming State Engineer's office OK'd the project or agreed that it's a stock pond ( which is an Ag thing and a special case created by Cattle Barons when Wyoming was framing its statehood ) . It does not appear to me to really be a stock pond in the customary sense, but that really is beside the point. The fact it is a good sized diversion and stored use of water is enough to drop the whole thing firmly into Army Corps jurisdiction, QED.

    Johnson went around that. Whether willfully or by ignorance doesn't matter. He's chosen since to make a federal case of it, which by the way was initiated back in February of last year and the relevant EPA documents were filed about 7-8 weeks ago. This is not a flash in the pan news story.

    If in fact the EPA on behalf of the lack of Army Corps 404 is bearing down on Johnson , it's because he's been a jerk about it , being defiant and anti-governmental in a state where that is a folk sport. And it blew up on him. I'm sure had Johnson been concilatory he could've reached a settlement , paid a fine , and the dam and pond could remain , but instead he chose to fight, so the EPA threatens on paper to lower the boom , or at least hover it over Johnson's thick head.

    No matter what the apparent benefits and improvements and wildlife habitat this pond brought into the world, the guy is flaunting the Water Laws. That is a cardinal sin , especially in Wyoming. Johnson is elarning the hardest way possible ( by his choices) that you do not challenge Water Law, which goes back to the Roman Empire some 2000 years and is absolute bedrock in the Wyoming Constitution . And as Johnson found out, water use is a federal soverignty going back 212 years and not to be trifled with.

    Mo matter what you think of the popular sport of EPA Bashing in Wyoming, or the Army Corps' incompetence around the country , or the Wyoming State Engineer playing fast and loose , please know that Andrew Johnson deserves to be lambasted also for his defiance and/or ignorance.

    Keep it all in perspective. There are lessons to be learned here. Water is that precious, especially in Wyoming. It has to be done right. Johnson did not do it right.
  22. Sassy
    Report Abuse
    Sassy - March 18, 2014 8:04 am
    Meanwhile Gov Matt expects payment for refugees in Wyoming from the feds.....Seems to me Matt needs sponsor the fishing derby- rather than gallivant off to Australia.....
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