Rancher Andrew Johnson’s family’s future in Fort Bridger, Wyo., may hinge on whether a stock pond he built in 2012 on his eight-acre ranch is used for fishing or to support ongoing farming activities.
With a state engineer’s permit in hand, Johnson constructed what has become a wildlife oasis along 2-foot-wide by inches-deep Six Mile Creek on his small cattle ranch in the southwestern part of the state.
The pond draws flocks of geese and ducks, an occasional bald eagle, and family fishing outings usually result in a haul of large brown trout. His cattle and other herds traveling along a county road drink from the pond throughout the year, Johnson said.
Once the U.S. Environmental Protection Agency caught wind of the project built without a Clean Water Act permit, the agency ordered Johnson to remove what it says is a dam and to restore the creek — or face potential penalties of some $75,000 a day until the work is completed.
EPA contends Johnson’s pond doesn’t qualify for an agriculture exemption.
“Potentially, it could ruin me or my life. My kids wouldn’t be able to go to college,” Johnson said. “There are threats of criminal charges. I’m taking that very serious. I have a clean record. I haven’t even gotten a speeding ticket. EPA, they’re pushing this for their own benefit. I feel very, very strongly that it is going to turn out in my favor.”
Though Johnson’s case drew a heap of national media coverage this past week as a David v. Goliath story of EPA pursuing a small rancher, Johnson’s experience should serve as a cautionary tale to farmers and ranchers across the country. Landowners need to make sure all possible permits are in hand before undertaking water-related projects.
Rick Deuell, surface water administrator for the Wyoming state engineer’s office, said Johnson’s situation is no different from many other landowners who have ponds. He said EPA’s actions raise concerns the agency could assert authority on other farmers and ranchers in the state.
“Literally, there are thousands of them (stock ponds) in the state,” Deuell said. “They are typically built on ephemeral streams and creeks that don’t flow as much.”
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.
The Clean Water Act offers no definition of ‘stock ponds’ or ‘dams.’ Still, the agency said in a statement to DTN Thursday that it stands by its compliance order because Johnson didn’t have a federal permit to build the pond, or dam — even though he had a state permit.
“The agricultural exemptions for stock ponds used in farming or ranching operations remain in place,” EPA said in a statement. “However, Mr. Johnson constructed a dam to create a fishing reservoir within the stream channel of Six Mile Creek. Such an activity does not fall within the stock pond exemption found in section 404(f)(1)(C) of the Clean Water Act.
“The issue is whether Mr. Johnson qualified for the stock pond exemption. To qualify for this exemption, the pond must actually be used in farming or ranching operations, and it is only exempt to the size the farmer requires it to meet operational needs. Ponds created for aesthetic or other non-farming-related purposes do not qualify for the exemption. Mr. Johnson stated verbally and in writing that he constructed the dam to create a fishing reservoir.”
Johnson said EPA has yet to question him about his ranching operation.
“I have had livestock the entire time I’ve lived here,” he said. “The wildlife and waterfowl benefits are fantastic. You would think the EPA would love that, but they don’t seem to care.”
Johnson said at no time did state officials direct him to apply for a Clean Water Act permit. State officials say they did.
Deuell told DTN that once the state engineer’s office approves construction and water rights permits for stock ponds, the agency’s involvement ends. Property owners are then responsible for acquiring other needed permits.
Wyoming State Engineer Patrick Tyrrell said when the state approved Johnson’s permit, the state provided contact information of other agencies that may require additional permits, including the U.S. Army Corps of Engineers.
“As far as I know, that’s what we did in this case,” Tyrrell said.
Johnson’s case has drawn attention from three U.S. senators including David Vitter, R-La.; Mike Enzi, R-Wyo.; and John Barrasso, R-Wyo., who in a March 12 letter asked EPA Acting Administrator for Water Nancy Stoner to withdraw the compliance order.
“We are troubled by EPA’s compliance order,” the senators wrote.
“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,” the senators wrote.
Johnson noted, “I’m more than 100 miles from any navigable water.”
Cheyenne, Wyo., attorney Dan Frank, who represents Johnson in this case, said he believes EPA’s pursuit is part of the agency’s move to expand Clean Water Act jurisdiction.
“I usually do not talk with the press much on pending litigation,” Frank said. “However, this case is somewhat different due to the political maneuvering by the EPA with their proposed rule to expand jurisdiction. In this case, we have a gully that carries irrigation return flows through Andy’s property and proceeds to flow into another irrigation canal.
“We are not sure if any water from the canal ever reaches a ‘water of the United States.’ The water becomes part of the canal’s irrigation system, and about the only way for the water to reach a perennial stream is to percolate into the groundwater or through diffuse runoff from further use as irrigation water.”
Frank said his client would not have constructed the pond had he known it would draw attention from EPA.
While landowners have the right to contest Clean Water Act determinations as a result of the U.S. Supreme Court case Sackett v. EPA, Frank said the cost of the appeals process would be taxing to the Johnson family.
“Judicial review is very expensive in itself, starting with the $400 filing fee to initiate a federal court case, which is dwarfed by the costs for attorney fees and expert witnesses,” Frank said.
The family filed a Freedom of Information Act request with EPA to see what information the agency has about the Johnson case, to decide whether or not to seek judicial review.
Damien Schiff, principal attorney with the Pacific Legal Foundation and the winning attorney in the Sackett case, said EPA may have to make a hard sell in asserting Johnson’s pond is not part of an ongoing ranch operation. He cites a section of the Clean Water Act exempting permits for the construction and maintenance of stock ponds.
“Given that Mr. Johnson obtained a permit from the state to construct the stock pond, and that he is surrounded by ongoing grazing operations with plenty of stock ponds, I can’t quite understand why EPA would choose to make a fight here, particularly given Mr. Johnson and his family’s excellent PR story,” Schiff said.