- The Washington Times - Sunday, August 30, 2015

Farmer Andy Johnson hasn’t sent millions of gallons of gold-mine wastewater down any rivers, but he’s facing more than $16 million in fines from the Environmental Protection Agency for running afoul the Clean Water Act.

His violation? In 2012, Mr. Johnson built a stock pond for his horses and cattle on his 8-acre property in Fort Bridger, Wyoming.

Even though the Clean Water Act exempts stock ponds, and Mr. Johnson had obtained the necessary state permits, the EPA ordered him in January 2014 to restore the area to its original condition or accumulate fines of $37,500 a day. Instead, Mr. Johnson hired a lawyer.

“The EPA is out to expand its power, and I’m a test case,” said Mr. Johnson in a statement. “We’re going to fight them all the way.”

Last week, his attorneys — including the Pacific Legal Foundation and the Budd-Falen law firm in Cheyenne — filed a lawsuit against the agency to stop it from enforcing the compliance order.

“The EPA’s double standard is mind-blowing,” said PLF staff attorney Jonathan Wood in a statement after the motion was filed Thursday in U.S. District Court in Wyoming.

He referred to the torrent of wastewater accidentally released Aug. 5 by an EPA-led team from the Gold King Mine near Silverton, Colorado, which contaminated water supplies along the Animas River in Colorado and New Mexico’s San Juan River.

“This is the same agency that just created a toxic mess in Colorado’s Animas River, with no accountability for the blundering bureaucracy,” said Mr. Wood. “But here they are, threatening Andy Johnson with astronomical fines, for building an environmentally beneficial stock pond that actually purifies the water that runs through it.”

Although stock ponds are specifically excluded from the Clean Water Act, the EPA argued that Mr. Johnson had violated federal law by constructing a dam on Six Mile Creek, which runs through his property, in order to fill the stock pond.

The creek is a tributary of the Green River, which is a “navigable, interstate water of the United States,” according to the EPA order.

As a result, the U.S. Army Corps of Engineers concluded that Mr. Johnson needed a “standard, project-specific CWA permit,” and not just the permits issued by Wyoming, which he had obtained.

The EPA also described the sand, gravel, clay and concrete blocks used by Mr. Johnson to construct the dam as “dredged material” and “pollutants” as described under the Clean Water Act.

“Six Mile Creek filled and disturbed by Respondent’s unauthorized activities provided various functions and values, including: wildlife habitat for birds, mammals, fish, reptiles and amphibians; water quality enhancement; flood attenuation; and/or aesthetics,” said the EPA complaint.

His tab now exceeds $16 million, but EPA spokeswoman Julia P. Valentine told the Casper Star Tribune that the agency has made no final determination regarding financial penalties.

Mr. Johnson said he filed the lawsuit after months of negotiations with federal officials ran aground.

“My family depends on me, and when the EPA came into my life, they didn’t just attack me, they attacked our family and our home,” Mr. Johnson said at a press conference Thursday as reported by the Tribune. “We’ve told them time and time and time again that it’s exempt, here’s the facts, and they’ve basically ignored it.”

Mr. Johnson also argues that the stock pond actually benefits the environment by providing water for eagles, heron, moose and other wildlife.

He hired a specialist, former U.S. Army Corps of Engineers enforcement officer Ray L. Kagel Jr., who concluded that the pond offered “quite a few environmental benefits.”

“It had the added benefit of creating quite a bit of nice habitat for fisheries, wildlife, waterfowl, and wetlands in general that were created because of this pond,” said Mr. Kagel, who heads Kagel Environmental LLC in Rigby, Idaho, in a PLF video.

He said the water flowing out of the pond is three times cleaning than the water entering it, citing independent lab testing, because the pond provides a place for sediment to settle.

Top Wyoming lawmakers have rallied around Mr. Johnson and his wife Katie, who have four children.

Republican Gov. Matt Mead said in a statement that the pond was permitted and constructed in compliance with state law, adding that, “The actions of the EPA in regard to Mr. Johnson have been heavy-handed.”

“This is federal overreach in the most egregiously ugly way,” said Rep. Cynthia Lummis, Wyoming Republican, in the PLF video. “I’m proud that Andy and Katie are standing up for their rights, because when they stand up for their rights, they stand up for all of our rights under state water law.”

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