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EPA: It's a dam not a pond. You owe us $75k/day  RSS feed

 
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Has anyone here faced a similar situation with the government's semantics? How do we protect ourselves from this kind of harassment?

Wyoming welder faces $75,000 a day in EPA fines for building pond on his property

All Andy Johnson wanted to do was build a stock pond on his sprawling eight-acre Wyoming farm. He and his wife Katie spent hours constructing it, filling it with crystal-clear water, and bringing in brook and brown trout, ducks and geese. It was a place where his horses could drink and graze, and a private playground for his three children.

But instead of enjoying the fruits of his labor, the Wyoming welder says he was harangued by the federal government, stuck in what he calls a petty power play by the Environmental Protection Agency. He claims the agency is now threatening him with civil and criminal penalties – including the threat of a $75,000-a-day fine.

“I have not paid them a dime nor will I,” a defiant Johnson told FoxNews.com. “I will go bankrupt if I have to fighting it. My wife and I built [the pond] together. We put our blood, sweat and tears into it. It was our dream.”

But Johnson may be in for a rude awakening.

The government says he violated the Clean Water Act by building a dam on a creek without a permit from the Army Corps of Engineers. Further, the EPA claims that material from his pond is being discharged into other waterways. Johnson says he built a stock pond -- a man-made pond meant to attract wildlife -- which is exempt from Clean Water Act regulations.

Read more at:
http://www.foxnews.com/politics/2014/03/14/wyoming-welder-faces-fine-for-building-pond-on-his-own-property/
 
pollinator
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I do not post about anything from Fox News because it is usually loaded with inaccuracies, half-truths or blatant lies, especially the politics section which is where the article is sourced.
 
pollinator
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I must admit I am pretty enamored with the idea of lots of people refusing to do silly things and pay petty fines and demanding a trial by a peer jury and full legal representation as a way to crash the system. That sounds ridiculous, as Asmedean pointed out its probably slightly sensationalized and spun.
 
Josh J.J. Jones
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Amedean Messan wrote:I do not post about anything from Fox News because it is usually loaded with inaccuracies, half-truths or blatant lies, especially the politics section which is where the article is sourced.


I tend to agree about Fox. So HERE is another source. Here's hoping that for once Congress will do something to actually help the regular people.
 
gardener
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I don't limit it to Fox. Either side of the aisle seems prone to bending things in favor of their viewpoint. Part of it is human nature of course, but part of it is also the fact that if you don't tune to their channel or read their paper, etc, then they are out of business. Honest news makes less money than news with a spin. I refer you to the following for my overall opinion on all news venues these days.



Edited to fix the picture
 
steward
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Pond vs dam is a big deal when you are talking western water rights. And just because a creek crosses your property does not mean that you can divert it. The rights are granted in order of claim. My water right goes back to something like 1902, but the town 40 miles down stream has precedence. That's not usually the EPA's end of things though.

Not enough detail to sort this one out. I note that it is all over the alternative conservative media, but neither the Casper nor Cheyenne papers has done a story. I'll be watching for more facts, because this one could go either way.
 
Josh J.J. Jones
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D. Logan wrote:I don't limit it to Fox. Either side of the aisle seems prone to bending things in favor of their viewpoint. Part of it is human nature of course, but part of it is also the fact that if you don't tune to their channel or read their paper, etc, then they are out of business. Honest news makes less money than news with a spin. I refer you to the following for my overall opinion on all news venues these days.



Edited to fix the picture


When it comes to politics, both the democorps and republicorps are just different wings of the same bird. Bigger government, less individual freedoms, more corporatism. If they can't tax it, regulate it, subsidize it, or get their hands on it in some way, they don't want you doing it.

The messed up part about this particular incident is that the state of Wyoming gave the ok to build the pond, but the feds are trying to flex their muscles and destroy this guy. This is something that everyone here should pay attention to, because the precedent that this will set will have repercussions nationwide. The EPA has until the 24th of this month to respond to Congress. Let's see what happens.
 
Josh J.J. Jones
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Ann Torrence wrote:Pond vs dam is a big deal when you are talking western water rights. And just because a creek crosses your property does not mean that you can divert it. The rights are granted in order of claim. My water right goes back to something like 1902, but the town 40 miles down stream has precedence. That's not usually the EPA's end of things though.

Not enough detail to sort this one out. I note that it is all over the alternative conservative media, but neither the Casper nor Cheyenne papers has done a story. I'll be watching for more facts, because this one could go either way.


I suppose it is possible Mr. Johnson created a Type 1 Error with regards to water rights. I think the state would have caught it before the EPA stepped in. Please keep us posted if you see it in the local news.
 
steward
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Well take a look at this. Let it soak in. Then tell me you own your land. In the USA, we can no longer do earthworks that effect any stream, no matter how small. If you disturb the soil and some of that soil goes downstream, you have polluted the stream and broken the law according to the clean water act! These folks are totally out of control. Time to ask your representitive about your states rights, and landowner rights!

http://www.epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=b5d11bd4-7c08-4ecb-8c2f-6fd819ca9be7
 
Josh J.J. Jones
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Miles Flansburg wrote:Well take a look at this. Let it soak in. Then tell me you own your land. In the USA, we can no longer do earthworks that effect any stream, no matter how small. If you disturb the soil and some of that soil goes downstream, you have polluted the stream and broken the law according to the clean water act! These folks are totally out of control. Time to ask your representitive about your states rights, and landowner rights!

http://www.epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=b5d11bd4-7c08-4ecb-8c2f-6fd819ca9be7


Good find!
 
steward
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Seem that Mr Johnson committed a Type 1 error.
He essentially dammed a creek.
That is a no-no just about anywhere in the US, but here in the western states, any earthworks you create that impede the natural flow of the water is bound to earn you a day in court.

While the land is his, the water that flows through it is not his.
Both states and federal agencies are going to be on the lookout for such activities.
It is going to become more common to hear stories like this.
Do your homework before you begin.

If you plan major water works, it might be best to begin a plant nursery a year (or 2) ahead of time. As work progresses, get these plants established around your project. Make it look as if it has been 'like that' for a long time. Bare earth is a real give away that major work is in progress.

 
pollinator
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Here they have the "Soil Conservation Service" that will send someone out for free to advise you on earthworks you're thinking about. In my case, he was pretty helpful - the backhoe guy hit some rock and he took a look to see what type it was because some have cracks that will drain your pond. In my case it wasn't a big deal because the pond is filled with water that runs off the hills when it rains. If anything it's a good thing because it keeps any manure from being washed into the river.
 
Ann Torrence
steward
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I propose a commonsense distinction:

Stock pond: dug entirely below grade, filled from subsurface water or an owned irrigation right.
Dam: impounds water that otherwise would flow down contour.

If the EPA report is correct, it's not like he just dug a pond and got some erosion into the stream, he dammed it up. The EPA generally asks for reparative mitigation in the former. But you can't go about dredging and damming watercourses in the west. Actually, no you can't go about dredging without a permit anywhere, which he apparently did not get. Dredging is not the same as disturbing. But I'm surprised the EPA got to him first.

Western water law is based on totally different principles than in the east. Wikipedia has a decent summary. Eastern rights are based on English common law and generally if the water passes through your land, you can use it; in the west it's based on "prior appropriation doctrine" which means someone downstream probably owns it. It's similar to how surface and mineral rights can be held by different owners. Even if he owned the entire water right off that creek, you generally still have to pull a permit to build a dam, if only because you only own the amount historically used, not every drop. Not to mention safety (flash floods, etc.) AND environmental regulations.

BTW, John Wesley Powell, after his exploration of the Colorado River, argued for a more rational settlement and water use principle fitted to the western conditions; he lost. Wallace Stegner' spends a good chunk of Beyond the 100th Meridian documenting this.

As a water rights owner, I vigorously defend my private property rights, even as I am installing permaculture systems that ultimately replace them. It's my dream that I won't need them in 10 years, will sell them off before the neighbors who covet my water copy what I am doing, and then someone else will take the loss when permaculture makes them irrelevant. That's capitalism at its best:innovation completely disruption an existing market.
 
Josh J.J. Jones
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If indeed Mr. Johnson created a Type 1 Error, it begs the question, why did the state give him permission to build it in the first place? Is the state liable? I suppose it depends on what type of permission the state gave him, and without seeing the actual document, I think it will be hard to know.
 
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The way the clean water act is written, any above ground rain runoff can be interpreted as a "seasonal stream" and swales as dams. Even key line could be considered altering a waterway.

And nutrient/topsoil harvesting from settling ponds like Geoff suggests would definitely cross a couple lines.

It isn't about what is right or best, it is about control and self-preservation and state vs. fed (10th amendment). This guy is just the latest one caught in the crossfire.
 
John Polk
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Josh J.J. Jones wrote:If indeed Mr. Johnson created a Type 1 Error, it begs the question, why did the state give him permission to build it in the first place? Is the state liable? I suppose it depends on what type of permission the state gave him, and without seeing the actual document, I think it will be hard to know.


If the state did give his plan a final approval, and he built to the specified plan, the state has a lot of liability here.
If nothing else, they should be summoned to testify in any hearings. Drop the ball in their laps.

Rather than fighting the feds out of his own pocket, he needs to get the issuing agency (of the permits) involved. If it becomes WY vs EPA, then he should be exempted from any civil/legal liability. Such a case would force the EPA to set exact guidelines and definitions. Clearly state what is/is not permitted. They cannot be allowed to make up their own rules as they go along, as too many federal agencies are already doing. They need to specify the laws. If it is not previously specified, it is not a violation.

The down side to having the state involved to this point, is that in the future, very few states will be willing to issue permits for any kind of waterworks. Once the state gets burned, the permit process will die.
 
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How do we know that the state gave the owner permission? And did they give him permission to mess with the stream, or just to build a stock pond?

I'm guessing the whole "messing with the stream" thing wasn't clear to the state, whether due to their error or his, I don't know. Not that any of that would ever be researched by a "news reporter", esp. at Fox.
 
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