Rancher Asks Court: Stop EPA

OMAHA (DTN) -- Rancher Andrew Johnson has asked a federal court in Wyoming for injunctive relief after spending more than a year trying to convince the Environmental Protection Agency he didn't violate the Clean Water Act in building a stock pond, according to a lawsuit filed Aug. 27.

Johnson asks the U.S. District Court to nullify EPA's order against him.

At this point the fines continue to pile up on Johnson, who ranches near Fort Bridger in southwestern Wyoming. According to the lawsuit, Johnson now owes EPA about $20 million for building a stock pond the agency contends violated the Clean Water Act because he altered a stream running through his property. Still, even the new waters of the United States rule is supposed to exempt stock ponds from EPA jurisdiction.

The catch, however, is that the Clean Water Act offers no definition of "stock pond" or "dams."

"If a permanent injunction does not issue enjoining EPA from enforcing the compliance order, Johnson will be irreparably harmed," according to the lawsuit. "He is currently and continuously injured by the order. Its issuance and ongoing threat of substantial daily fines forces him to alter how he uses and enjoys his private property and attempts to coerce him into removing his stock pond, despite the lack of any violation of the Clean Water Act. Specifically, as a result of the compliance order and its threat of enforcement, Johnson has suffered and will continue to suffer a diminution in the value of his land and its available uses.

"Johnson has no plain, speedy, and adequate remedy at law."

EPA declined comment when contacted by DTN.

The Pacific Legal Foundation has agreed to take on Johnson's case. The group has successfully argued cases against EPA at the U.S. Supreme Court, recently scoring a victory for Idaho property owners Mike and Chantell Sackett. In that case the court ruled property owners are entitled to review under the Administrative Procedures Act when EPA issues compliance orders.

Jonathan Wood, a staff attorney for the foundation, told DTN that EPA has offered little explanation for continuing to pursue alleged violations against Johnson.

"Unfortunately, the short answer is that EPA hasn't been forthcoming about its reasons for persisting in this case," Wood said.

The applicability of the stock pond exemption should be easy, but Johnson, his lawyers, and a former Clean Water Act enforcement officer have spent more than a year trying to explain the situation to EPA, Wood added.

"The sad truth is that EPA has little incentive to explain why it's doing this," Wood said. "Until you sue EPA, forcing it to defend its actions in court, EPA can simply stall, knowing that every day that passes causes the fines hanging over your head to grow. Most small farmers -- or any other type of property owner, for that matter -- can't afford to risk letting those potential fines accumulate."

Wood said EPA has provided some hint as to why it won't drop the case. The agency contends the exemption doesn't apply because Johnson constructed the pond by discharging dredge and fill material (dirt and rocks) to dam a small creek.

"This is plainly wrong and would read the stock pond exemption out of the statute," Wood said. "The statute says that placing dirt and rocks in waters for 'the purpose of construction or maintenance of farm or stock ponds' is categorically beyond EPA's reach. The only way stock ponds can be subject to federal regulation are if they both (a) change the use and (b) impair the reach of the water. Neither was done here.

"If the press accounts are correct and that is their reasoning, then I think it is fair to say that the statutory exemptions are in jeopardy."

Johnson hired a private consultant based in Idaho who previously worked for the U.S. Army Corps of Engineers as a wetlands consultant responsible for making Clean Water Act determinations. Preliminary and final reports of a study done on Johnson's property found no waters of the United States and point to what Johnson's attorneys say is an obvious exemption.

Although Johnson provided the engineering assessment in asking the agency to drop the case, EPA insists he violated the law because the stock pond he built does not meet the definition, so is not exempt, according to the lawsuit.

The agency has ordered Johnson to restore the creek back to its original state, arguing it qualifies as waters of the United States. Still, Johnson told DTN he jumped through all the permitting hoops, working closely with the state engineer in developing the plans and building the stock pond.

Rick Deuell, surface water administrator for the Wyoming state engineer's office, told DTN last year there are thousands of stock ponds in the state of Wyoming similar to Johnson's pond. The state issues stock pond permits for structures with dams of up to 20 feet high and ponds that contain no more than 20 acre feet of water.

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @ToddNeeleyDTN

(CC/CZ)

Copyright 2015 DTN/The Progressive Farmer. All rights reserved.