If you have property on a body of water [river, stream, lake, ocean] or a pond, puddle, ditch, dry wash that gets rain once a year but does not even flow into a stream or river, golf course with a water hazard………………………….
The EPA and the U.S. Army Corps of Engineers are publishing for public comment a proposed rule defining the scope of waters protected under the Clean Water Act. This is Docket No. EPA-HQ-OW- 2011-0880 in the Federal Register.
The proposed rule would give EPA jurisdiction over small ponds, ditches, rainwater flowing through low spots and isolated wet spots - the same as if they were a river or other navigable waterways.
Here is how the EPA acts today with the regs that exist absent the over reach above:
In 2011, Andy and Katie Johnson built a stock pond on a small creek that runs through their eight-acre farm near Fort Bridger, Wyoming. A stock pond is a pond used for watering animals. The Johnsons applied for, and received, a permit for their stock pond from The Wyoming State Engineer's Office, and they followed the state rules for building the pond.
As Andy Johnson put 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.”
On Jan. 30, the EPA announced that they - not the state of Wyoming - had jurisdiction over the Johnson’s stock pond. The EPA sent the Johnsons a notice informing them they had violated the Clean Water Act, which could carry thousands of dollars in fines. The Johnsons were given 10 days to reply in writing that they would remove the pond and return the creek to its pre-pond state. The EPA gave them 30 days to hire an approved consultant to create a removal plan, subject to EPA approval, for the work.
The Johnsons have vowed to fight, and have told the EPA they won’t comply. The EPA has threatened to fine the Johnsons $75,000 per day in civil penalties. A defiant Andy Johnson told Fox News, “I have not paid them a dime nor will I. I will go bankrupt if I have to.”
What makes this story particularly egregious is the EPA really does not have any legal jurisdiction in this case. When Congress wrote the Clean Water Act in 1972, it clearly intended for the law to apply only to navigable waters, and the Johnson’s creek is certainly not navigable. But the EPA and the Corps keep attempting to expand their jurisdiction, something Congress has explicitly chosen not to allow and which two U.S. Supreme Court decisions have rejected.
According to Daniel McGroarty, President of American Resources Policy Network, “The new catchphrase is ‘connectivity:’ Forget whether waters are navigable; what matters now for EPA’s would-be rulemakers is that disparate bodies of water are connected ecologically.”
The EPA is claiming that the Johnson’s creek runs into the Black Forks River, which then runs into the Green River. Since the Green River is navigable, the EPA is claiming jurisdiction because the Johnson’s creek is connected to navigable water. But EPA legal jurisdiction based on connection to navigable water is simply not in the Clean Water Act. The EPA is in essence saying, “Badges? We don't need no stinkin’ badges!”
But even if the EPA had jurisdiction based on connection to navigable water, the Johnsons say their creek downstream flows into an irrigation canal and has no connection to either river.
But there is more, and this is outrageous. The Clean Water Act contains an exemption specifically for stock ponds. It is called a section 404 (f)(1)(C) exemption. The EPA has made a unilateral ruling in this case that the Section 404 exemption does not apply to the Johnsons, but they have never explained why.