In a 2-1 decision in the DC Court of Appeals today the justices rejected the EPA’s assertion that its decision to ‘stay’ the methane rule for two years was not a final agency action, and therefore not subject to court overview.
The imposition of the stay, however, is an entirely different
matter. By staying the methane rule, EPA has not only concluded that section 307(d)(7)(B) requires reconsideration, but it has also suspended the rule’s compliance deadlines. EPA’s stay, in other words, is essentially an order delaying the rule’s effective date, and this court has held that such orders are tantamount to amending or revoking a rule. As we explained in a very similar situation, where an agency granted an application for interim relief from a safety standard while it reconsidered that standard: “In effect, the Administrator has granted a modification of the mandatory safety standard for the entire period of time that the petition is pending. There is no indication that the Secretary intends to reconsider this decision or to vacate the grant of interim relief. Thus, the Secretary’s decision represents the final agency position on this issue, has the status of law, and has an immediate and direct effect on the parties. Therefore, we have no difficulty concluding that the Secretary has issued a final decision . . .
Yesterday, the House passed the Honest and Open New EPA Science, or HONEST, Act. Tortured use of acronym aside, this Act is anything but honest.
The GOP claims the act is to force the EPA to provide the raw data behind all of its decisions. However, the primary reason for the Act is to inhibit regulations based, in part, on confidential or proprietary raw data. The Act’s inspiration came from research published in 1993 and known as the Harvard Six Cities Study.
This research formed the basis for many of the EPA’s Clean Air Act regulations related to particulate matter. If you can clearly see the skyline of LA now, and breathe its air without a facial mask, thank the authors of the Six Cities Study.
Andy Johnson created a “stockpond” by building a dam on a creek that is covered under the Clean Water Act. The EPA issued a violation to him for not getting a permit for unauthorized dumping in said creek. The solution outlined in the violation was to work with the agency to remediate the damage. If he didn’t comply, he could face significant fines.
March 22, lawyers with the US Department of Justice and representing Andy Johnson filed a consent decree in court to resolve the court case of Andy Johnson V EPA. The consent decree outlines steps that Johnson must take in order to settle the matter. These are:
Plant dormant willows partially around the pond he created, and ensure they live until September of 2017.
The site must be monitored for invasive species until September of 2017.
Fence the north side of the pond to keep livestock away from the planted areas. The fence must be maintained until September 2017.
That’s it.
I obtained the Administrative Records for this case from the EPA. These are records the EPA maintains for any violation or possible violation, which are then submitted to the courts if the violation results in a court case. In the Administrative Records we discover:
That a neighbor warned Johnson he needed a permit to build the dam he was building. He was warned before he started, and again during the work. The same neighbor also asked to be notified when Johnson was informed of the complaint, as the neighbor wanted to notify the Sheriff’s office ahead of time because of other unspecified actions Johnson had taken against the neighbor.
That same neighbor, or neighbors, had significant problems with the work, detailed in photos showing potential points of erosion and problems with shared driveways, and silt contamination of surrounding areas.
Wyoming gave Johnson a stockpond permit, even though the State knew Johnson was really building a fish pond, “with the understanding that the local official could use it”. Which “local offical”? This isn’t given, but if I lived in that area, I sure would like to know which “local official”.
Regardless of the “local official” who would also benefit from the pond, the general feeling in the local community was that they did not like the pond and felt “if this type of project is allowed to happen“, it would set a precedent that would then be followed by others in the area.
The County was concerned about the “stockpond”: that it was misrepresented, that it would cause problems with neighbors and an adjacent county road, and that the public wasn’t given an opportunity to comment. “It would appear from the permit that this reservoir has been constructed under the pretense of providing waters to livestock or wildlife although this is an eight (8) acre, residential subdivision.”
It’s necessary to maintain the same flow of water for downstream fisheries, even in low-flow times. A dam with a spillway can adversely impact this flow.
Though the dam doesn’t look it might blow and take out the roadways (knock on wood) it did puzzle the State engineers as to why it didn’t match the permit request to the State.
Well, then. Seems there is much more to this “stockpond” than Mr. Paul Ryan mentioned in his opinion piece, or reflected in the video with all those American flags.
I’m disappointed in the consent decree. Johnson’s actions were an egregious violation of the CWA. I have received documents from the Justice Department in response to a FOIA about the communications leading to this decree, and will post an update.
The EPA has responded to the lawsuit, asking the judge to refer the case for Alternative Dispute Resolution, rather than an extensive and costly litigation. As they note in the request:
Johnson did dam the creek without permit
There is no doubt this is in violation of CWA
The reason for the permit process was so the Army Corps of Engineers could evaluate the risk to the environment for a project
Both the Corps and the EPA attempted to discuss the dam with Johnson before issuing the letter of violation
The EPA did have a discussion with Johnson after the letter was issued is unsure why he suddenly broke off discussions (PLF comes to mind)
The EPA has not issued fines and believes there is a solution equitable to all parties, and asked for third-party assistance in ADR
Reasonable, and not the fire breathing over-reaching agency as portrayed by extremist libertarians, who believe everyone can do anything they want to the water and the air.
Much ado about nothing.
earlier
Last year I wrote about a Wyoming family and the big, bad EPA huffing and puffing at their door. Seemingly, the Andy Johnson family was being threatened with outrageous fines, just for putting in a simple stock pond. A little digging, though, showed that the story was far more nuanced. For one, the family had basically blown off any previous attempts at communication from both the Army Corps of Engineers and the EPA. It wasn’t until the EPA sent a notice of violation did they respond to the communications—by contacting the press and their congressional representatives.
In the story, I foretold of the likelihood of our friends at Pacific Legal Foundation (PLF) being on their way to the Andrew Johnson family’s side. This last week, my fortune telling skills were vindicated, when PLF filed suit in federal court on behalf of the Johnsons. And, as is typical for a PLF court case, the (primarily conservative) media has been inundated with videos and photos of family members, little children, and lots and lots of American flags. An example, complete with strategic American flag placement:
Now the refrain is that the Johnsons are being threatened with millions of dollars of fines, all because they put in a small dam, to create a little pond to water their livestock.
Not.
Let’s revisit the Johnson home, courtesy of Google Maps. The Johnson property boundaries are marked by lines in the satellite image, most likely fences. The first thing we’ll notice is that the satellite image of the area shows that the “little pond” is over an acre in size.
The dock is still there. That’s that white rectangle next to the pond.
It’s a curious thing, this dock. In the court documents, PLF provides a copy of the permit application the Johnson’s filed with the state of Wyoming. In it, the state declares that the permit is “…for stock watering purposes only.” So if the water is for stock watering purposes only, why a dock? Come to that, why does the pond, whose only purpose is to water livestock, need to be stocked with different kinds of trout, ducks, and geese?
As for the livestock, returning once again to Google maps, I checked for the herds of cow, horses, and/or pigs that would necessitate a stock pond over an acre in size.
And I found what looks to be a pen with five animals, either cows, horses, or some other animal about that size.
It is true that cows and horses are thirsty creatures; they need approximately 12 gallons of water a day. But a stock pond with over 5.07-acre feet of water? This is equivalent to 1,652,066.74 gallons. Via a Google search, I found an Army Corps of Engineers document that notes 50 head of cattle only need a stock pond of 3/4 acre. There is absolutely no way that Johnson will have 50 head of cattle on that small 8-acre plot of land.
In their complaint, the PLF lawyers stated the work was exempt as a “construction or maintenance of farm or stock ponds.” But what the lawyers left out is the line that proceeded the listed exemptions, ” Except as provided in paragraph (2) of this subsection, the discharge of dredged or fill material.” In paragraph 2, we find:
(2) Any discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced, shall be required to have a permit under this section
In other words, if you’re maintaining an existing pond, no permit is necessary. If you’re building a new one, however, you need that permit. More importantly, the Army Corps of Engineers needs to ascertain whether the work being done is going to have an adverse effect on the water system.
Now, according to the folks at PLF, the Johnson pond isn’t having an adverse effect on the water system. In fact, according to their court documents (press releases, YouTube video, and so on), as well as an environmental assessment provided by Kagel Environmental LLC, the Johnsons have actually improved the area. But then, the Kagel report also mentions that, in their understanding, any stock pond is exempt from the CWA permit process. Well, we already know this isn’t true, and we’re not experts. But, let’s continue with the report.
In the report, the Kagels noted in their observation that Six Mile Creek terminates in an irrigation channel, and hence does not connect with any water system that would be considered covered under Section 404 permitting. What’s interesting, though, is when you read the permit application the Johnsons made to the state, it does note that Six Mile Creek is a tributary to Black’s Fork River, which is, in turn, a tributary to Green River—a river that transcends state borders and is most definitely under Section 404 permitting.
The Kagels also note that the pond captures the water, but then releases the same volume of water through a spillway. Therefore, they conclude, the pond doesn’t restrict the flow of the water. But artificially inserting spillways and dams into a water can have an extreme impact on the vitality of the water system, as well as an impact on the wild life dependent on it. And it doesn’t change the facts of the case: the Johnsons did dump 12 cubic yards of fill and concrete into the Six Mile Creek without first having such actions vetted by the Army Corps of Engineers.
That 12 cubic yards of material was the amount estimated by the Army Corps of Engineers/EPA. It doesn’t match the 10 cubic yards the Kagels noted in their report. By coincidence, the Kagel estimate places the Johnson discharge just under the limits for Nationwide Permit #18, which allows minor discharges of 25 cubic yards or less, but does require that a pre-construction notification be given to the Army Corps of Engineers for any discharge over 10 cubic yards of material.
The Kagels also claim that the Johnson pond improved the health and vitality of the water system. Returning again to Google Earth, the following are satellite images taken in 2002, 2006, and 2009. Seems to me that creek has always a viable ecosystem that’s natural for the area. No trout, true; but natural.
One other bit in the Kagel report, was a rather odd paragraph in the cover letter for the report:
Before summarizing our site inspection, findings, and conclusions, etc., we’d like to clarify that despite the contention by EPA that they believe the alleged violation site is located in Utah, Mr. Johnson has assured us his farm is located in the state of Wyoming. In a “Letter of Potential Violation” dated May 22, 2013 addressed to Mr. Johnson and signed by James H. Eppers, Supervisory Attorney and Arturo Palomarers, Director, EPA’s Office of Enforcement, Compliance, and Environmental Justice, EPA stated that the alleged violation site is in the state of Utah. It’s therefore reasonable to assume that there may be another alleged Clean Water Act violation in Utah by someone with the same name, or in the alternative, that the EPA simply was unable to accurately identify or determine in which state Mr. Johnson’s farm is located.
This writing is both petty and unnecessarily snarky. That a simple typo would draw forth this paragraph leads one to suspect that there is a degree of personal animosity between Ray and Susan Kagel and either the EPA/the Army Corps of Engineers, or both. A simple Google search proves this to be true: Ron Kagel had sued the Corps, his former boss, related to its actions regarding what it perceived to be conflicts of interest, and what he claims is whistleblower retaliation. In addition, Kagel also claims that the Corps is targeting him in retaliation because of his work with another PLF court case, Sackett v EPA. We don’t know, though, the impact of his work on the case, because it was put on hold for a time. The case was only recently re-opened, and without the same fanfare as the Johnson Pond.
Nothing is ever as simple, or as black and white, as portrayed in press releases and media stories. PLF portrays the EPA as a bully, and Andy Johnson, an innocent farmer. Yet Johnson is a welder, by trade, who stated the pond was for the purpose of livestock watering but then builds a dock and stocks the pond with trout. In addition, in all of the press releases, PLF doesn’t once mention the fact that the EPA and the Army Corps of Engineers actually reached out to Johnson, several times, trying to open a dialog about his dam, and what he could do to mitigate any violation of the CWA.
The EPA has already remarked that it rarely issues the fines mentioned in its violations. It has to mention the applicable fines, though, as part of the legal document process. I’ve followed several EPA cases and even with large corporations, the EPA rarely issues the maximum fines it could assess. Most of the time with smaller cases, it just wants corrective action. But saying things like fines of $37,000 a day, or Johnson is facing millions in fines from the federal government, plays well to those who do little more than skim headlines before getting ready to pull out the pitchforks.
A simple pond is less so if you consider the ramifications to the rest of society. If everyone who had a creek, stream, or river flowing through their property decided to dam it up, what would be the overall impact? Rather than majestic rivers, and crystal clear creeks and streams we can all benefit from, we’d have a succession of stock ponds, geared specifically to each owner’s use, regardless of the impact on others. We’d have court fights, and gun fights, and a great deal of animosity between neighbors.
The Kagels map of the pond shows it stopping at the border of Johnson’s property:
Returning to the Google satellite view of the property, taken in 2014, we can see for ourselves that the water is backing up on to the neighbor’s property. And one thing the satellite images can’t show is how much the creek’s ecosystem has been impacted by having the dam in its path. Or what exactly happens to that flow of water in a dryer year.
I’m not a lawyer, but in my opinion, the court case will be a slam dunk. The Johnsons dumped 12 cubic yards of material into a creek, which ultimately feeds into a river that crosses state borders. They did so without a permit. Rather than work with the EPA or Corps, they turned to the Tea Party Press and exclaimed about the little guy and the big bad federal government. As it is, their pond seems to also be a violation of Wyoming state law, since the Johnson’s are, in my opinion, using it for purposes other than watering their stock. I imagine, though, that Wyoming would just as soon be left out of this bramble broth.
We need to take a moment to remember exactly what the Clean Water Act is for, and why the EPA is enforcing it: both exist to ensure clear, clean water and healthy ecosystems that benefit all of us, not just a few. We can’t continue to get caught up in this David vs Goliath romance, manufactured by libertarian interests who would like nothing more than to see our rivers reduced to a series of privately owned, barb-wire fenced ponds, each with their Stars and Stripes flag, flying high.
A story in a local news station provides both video and photos of the “little pond”.
That’s no pond, it’s a bloody lake. It has a dock. A dock.
This is a contrived controversy.
Earlier coverage
Fox just published a story about a poor blue collar in Wyoming, threatened with horrific fines for building an environmentally friendly little pond on his land.
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.
That EPA…what a bully. Poor man was only building a little pond, providing water for local wildlife and a place for the kiddies to play.
The only problem is the story is as much fiction as fact. Two minutes is all it took to locate the EPA letter of violation. And the letter tells a different story.
According to the letter, the Army Corps of Engineers knew about this “little pond” in 2012 and contacted the Johnsons. From the violation:
On October 11,2012, the United States Army Corps of Engineers (Corps) conducted an inspection of the Site and confirmed that Respondent or persons acting on his behalf had discharged or allowed the discharge of approximately 12 cubic yards of dredged and fill material below the ordinary high water mark of Six Mile Creek during construction of a darn. The work resulted in filling an approximately 40-foot reach of the creek and inundation of an approximately 745-foot reach.
Dumping 12 cubic yards of fill material into a creek is what we call a “dam” back where I come from. Perhaps they call it something else in Wyoming.
The Corps contacted Johnson several times but received no response back. It turned the case over to the EPA for enforcement.
On May 30,2013, the EPA performed an inspection of the Site and verified that an approximately 40-foot reach of Six Mile Creek had been filled during the construction of a dam, impacting approximately 785 feet of the Six Mile Creek channel. The dam was observed to be composed of sand, gravel, clay, and concrete blocks.
I suspect that the Johnsons effort to fill the pond with “crystal clear waters” consisted primarily of running a backhoe in and dumping cement blocks on the creek.
The EPA also invited Johnson to contact its representatives, multiple times, but he ignored all communications. Eventually, the EPA issued the letter with the violation notice. Now Johnson is crying to his Republican Congressional leaders and Fox news about the sudden appearance of the big bad EPA, dumping down on this poor little land owner.
There’s a reason for laws preventing people from damming water sources such as creeks and rivers on their property—their actions impact on others. I suspect the Army Corps of Engineers found out about the “little pond” when impacted neighbors complained.
And once again, Fox has failed to do its job in its haste to cast the EPA in the worst possible light.
