EPA targets couple's private pond in Wyoming, threatens huge fines

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Homeowner faces massive fine from EPA for building a pond

Alicia Acuna reports from Denver, Colorado

When Andy and Katie Johnson built a pond on their property in 2011 to provide water for their cattle, they never dreamed it would result in threats of $75,000 a day in fines from the Environmental Protection Agency.

The Johnsons believed they had done everything necessary to get permission for the pond, where the tiny Six Mile Creek runs through their property south of Fort Bridger, Wyo. The Wyoming State Engineer's Office provided the permit and even stated in an April 4, 2013 letter to the Johnsons: "All of the legal requirements of the State Engineer's Office, that were your responsibility, have been satisfied for the Johnson Stock Reservoir."

The EPA saw it differently -- and sent the Johnsons a Jan. 30 notice informing them they had violated the Clean Water Act, which could carry thousands of dollars in fines.

"I believe that the EPA does need to regulate industry and the bigger projects," Andy Johnson conceded, "but my little pristine stock pond, I believe, is a waste of our taxpayer money for them to come after me. It's a waste of my time, it's a waste of my money and we're going to fight it."

In their notice, the EPA cited the couple for "the discharge of pollutants (i.e., dredged or fill material) into the waters of the United States," for building a dam and for not getting a permit from the Army Corps of Engineers.

Andy Johnson denies the project caused any pollution. "It's all an assumption. There's been no soil samples done, there's been no water samples done."

The Johnsons have since had their own testing done which they say shows that the water leaving the pond is cleaner than the water entering it. They also say that, far from damaging the environment, the pond has improved it.

"Before we didn't have ducks and geese. ... Now you can see bald eagles here, we have moose come down. We have blue herons that come in every evening. Before we did this ... it was basically just a little irrigation canal."

The EPA says Six Mile Creek runs into Black Forks River which runs into the Green River -- which it calls a "navigable, interstate water of the United States."

The Johnsons and their attorney say Six Mile Creek has long been diverted about 300 yards below their property into a man-made canal used for irrigation.

"There is no connection to the river," Andy Johnson maintains.

The Johnsons were given 10 days to reply in writing that they would dismantle the pond and return the creek to its pre-pond state. The EPA gave them 30 days to hire an approved consultant to develop a plan, subject to EPA approval, for the work.

"Unfortunately I was not surprised that they would come in and go after a guy who tried to improve his property," William Perry Pendley, president of Mountain States Legal Foundation, said.

Pendley has no connection to Johnson's case but has represented others who have been targeted by the agency for violations of the Clean Water Act. "It's very frustrating and these things take an incredible length of time. And every benefit of the doubt goes to the federal government," he said.

The Johnsons vow to fight, and have told the agency they don't plan to comply. The young couple have received hundreds of calls of support from landowners all over the country. Wyoming Gov. Matt Mead "called us and said that he is behind us," Andy Johnson said.

And on March 12, U.S. Sen. David Vitter of Louisiana, top Republican on the Environment and Public Works Committee, sent a letter to the EPA along with Wyoming Sens. John Barrasso and Mike Enzi demanding an explanation.

"Rather than sober administration of the Clean Water Act," the letter says, "the Compliance Order reads like a draconian edict of a heavy-handed bureaucracy."

In a statement to Fox News, the agency said in part: "EPA staff recently had a productive discussion with Mr. Johnson, and we are currently reviewing information he sent to our attention last week regarding his construction of a dam and pond within Six Mile Creek. EPA will carefully evaluate this information and will continue to reach out to Mr. Johnson to identify options to secure compliance with the Clean Water Act."

The Johnson case is troubling to those who see a proposed rule change to the Clean Water Act as a threat to small private landowners. Critics worry that the attempt to "re-define" what counts as U.S. waterways could broaden the reach of the EPA.

"The Clean Water Act that was passed (in 1972) was 88 pages long," Pendley points out. "The EPA has just issued several hundred pages to re-define what 'waters of the United States' mean and it has incredible impact."

In a follow up letter to the EPA on April 1, Vitter and his colleagues in Wyoming's congressional delegation also voiced concern about the proposed rule.

"If ... the [Johnson] Compliance Order stands as an example of how EPA intends to operate after completing its ... rulemaking, it should give pause to each and every landowner throughout the country." the letter said.

Also troubling to the Johnsons and their supporters is the amount of money at stake.

The couple's attorney Dan Frank explained that the administrative order threatens $37,500 a day for each violation. Combined with other alleged violations, he said, "there is the potential for $75,000 per day in civil penalties."

In a follow-up letter to the EPA, Vitter and his colleagues have asked for, but so far not received, clarification of the potential fines involved. They say their reading of the EPA's Administrative Order leads them to believe the Johnsons could potentially be subject to as much as $187,500 a day in fines.

"In one month's time a landowner could be liable for more than $5.5 million in penalties. EPA could easily use the proposed rule to bankrupt small landowners for something as simple as building a pond or ditch anywhere near a wetland or stream," the letter said.

Katie Johnson said they just wanted to create something special on their land. "I love it. I hope that we can settle it and keep the pond and ... be able to see our kids and grandkids enjoy it."

Andy Johnson said the EPA picked on the wrong people. "Because we're not going to just roll over. I'm not going to give money that was supposed to be for my kids' future and their college for something that I got permission for in the beginning. We're not tearing this out."