- - Friday, May 2, 2014

Paper-pushers in Washington need to get out more — the real world bears little resemblance to the view from the federal cube farm or from space.

In mid-March, a story out of Wyoming reported that the Environmental Protection Agency (EPA) had targeted a Fort Bridger (population 345) welder for violating the Clean Water Act and threatened to fine him $75,000 a day unless he restored a wetland he altered without a permit and, therefore, contrary to federal law. Andy Johnson, who owns eight acres in Uinta County in southwestern Wyoming on which he runs horses and watches his three daughters play, says the stock pond he built, filled with crystal-clear water, and used to create a habitat for brook and brown trout, ducks and geese, was permitted by the Wyoming State Engineer’s Office.

The timing could not have been worse. Folks in Wyoming were still fuming over the EPA’s December 2013 decision to designate a million acres, including the town of Riverton (population 10,000), inside the boundaries of the Wind River Indian Reservation. In doing so, the EPA ignored 110 years of history and state, federal and U.S. Supreme Court rulings. Moreover, the EPA was a month away from issuing new regulations to give it even more authority over private land like Mr. Johnson’s by broadening the definition of “waters of the United States.”

Wyoming’s Republican senators demanded the EPA withdraw the compliance order, which they labeled “a draconian edict of a heavy-handed bureaucracy” that puts “each and every landowner throughout the country” in fear. For his part, Mr. Johnson did not back down. “I have not paid them a dime, nor will I . If you need to stand up and fight, you do it.” He can draw strength from another Wyomingite who stood up, fought the EPA, and won.

In 2005, David Hamilton of Worland (population 5,500), in north-central Wyoming, cleaned out an irrigation ditch on his 400-acre farm. Mr. Johnson and his wife may have put their “blood, sweat and tears into [their] dream” of a stock pond, but Mr. Hamilton spent $30,000 hauling away discarded cars, broken appliances and assorted debris that lined the ditch to foil erosion, and made other agricultural improvements. The project was a success, but the EPA disagreed. In 2007, its agents showed up on the farm and in 2010, the agency sued Mr. Hamilton in federal court.

The EPA claimed Mr. Hamilton destroyed 8.8 acres of wetlands, an impossibility given that Worland records the least rainfall in Wyoming — less than 8 inches a year. Facts did not matter to the EPA. instead, it relied on the National Wetlands Inventory — prepared by the U.S. Fish and Wildlife Service using Google Earth satellite images — to target the landowner and to tally wetlands damaged. Unfortunately, when Mr. Hamilton’s attorney, Harriet M. Hageman, challenged the EPA, the district court ruled that “Slick Creek,” which is actually Mr. Hamilton’s irrigation ditch, is “navigable waters of the United States,” as “a matter of law.”

Worse rulings were to come. Ms. Hageman’s proffers of evidence that Mr. Hamilton’s work had improved the environment, that the EPA was seeking to extort nearly a million dollars from her client, that the EPA’s investigation was shoddy, and that the basis for its lawsuit was flawed and insupportable all were rejected as “unduly prejudicial.” The jury never learned that Mr. Hamilton had reduced sediment into the Big Horn River, decreased water use on the property, reduced the release of chemicals off the land, and in the process created a beautiful and well-managed farm that produces a variety of crops and sustains stock grazing.

It didn’t matter, though. After a two-week trial, the jury returned after only 140 minutes to rule for Mr. Hamilton. His were “dredge or fill activities,” the jury held, exempt from federal permitting as “normal farming and ranching activities,” including upland soil and water conservation. Moreover, the jury found that “Slick Creek” is a man-made irrigation ditch and exempt from federal law.

In Washington, the EPA may be a juggernaut, but in Wyoming, common sense still rules.

William Perry Pendley is president of Mountain States Legal Foundation and author of “Sagebrush Rebel: Reagan’s Battle With Environmental Extremists and Why It Matters Today” (Regnery, 2013).

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