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Old 03-14-2014, 07:19 PM  
ChiefsandO'sfan ChiefsandO'sfan is online now
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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.

The property owner says he followed the state rules for a stock pond when he built it in 2012 and has an April 4-dated letter from the Wyoming State Engineer’s Office to prove it.

“Said permit is in good standing and is entitled to be exercised exactly as permitted,” the state agency letter to Johnson said.

But the EPA isn’t backing down and argues they have final say over the issue. They also say Johnson needs to restore the land or face the fines.

Johnson plans to fight. “This goes a lot further than a pond,” he said. “It’s about a person’s rights. I have three little kids. I am not going to roll over and let [the government] tell me what I can do on my land. I followed the rules.”

Johnson says he was “bombarded by hopelessness” when he first received the administrative order from the EPA. He then turned to state lawmakers who fast-tracked his pleas to Wyoming’s two U.S. senators, John Barrasso and Mike Enzi, and Louisiana Sen. David Vitter.

The Republican lawmakers sent a March 12 letter to Nancy Stoner, the EPA’s acting assistant administration for water, saying they were “troubled” by Johnson’s case and demanding the EPA withdraw the compliance order.

“Rather than a sober administration of the Clean Water Act, the Compliance Order reads like a draconian edict of a heavy-handed bureaucracy,” the letter states.

The EPA order on Jan. 30 gave Johnson 30 days to hire a consultant and have him or her assess the impact of the supposed unauthorized discharges. The report was also supposed to include a restoration proposal to be approved by the EPA as well as contain a schedule requiring all work be completed within 60 days of the plan's approval.

If Johnson doesn’t comply -- and he hasn't so far -- he’s subject to $37,500 per day in civil penalties as well as another $37,500 per day in fines for statutory violations.

The senators' letter questioned the argument that Johnson built a dam and not a stock pond.

“Fairness and due process require the EPA base its compliance order on more than an assumption,” they wrote. “Instead of treating Mr. Johnson as guilty until he proves his innocence by demonstrating his entitlement to the Clean Water Act section 404 (f)(1)(C) stock pond exemption, EPA should make its case that a dam was built and that the Section 404 exemption does not apply.”

The EPA told FoxNews.com that it is reviewing the senators' letter. "We will carefully evaluate any additional information received, and all of the facts regarding this case," a spokeswoman for the agency said.

The authority of the EPA has recently been called into question over proposed rule changes that would redefine what bodies of water the government agency will oversee under the Clean Water Act.

The proposed changes would give the agency a say in ponds, lakes, wetlands and any stream -- natural or manmade -- that would have an effect on downstream navigable waters on both public land and private property. “If the compliance order stands as an example of how EPA intends to operate after completing its current ‘waters of the United States’ rulemaking, it should give pause to each and every landowner throughout the country,” the letter states.

For now, the matter remains unresolved. Johnson says he’s not budging and there’s been no indication from the EPA they will withdraw the compliance order.

Regardless of the outcome, Johnson says his legal fight with the government agency is a teachable moment for his kids

“This is showing them that they shouldn’t back down,” Johnson said. “If you need to stand up and fight, you do it.”


http://www.foxnews.com/politics/2014...-own-property/
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Old 03-16-2014, 08:39 AM   #31
Loneiguana Loneiguana is offline
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Originally Posted by GloucesterChief View Post
Yes, I don't think you should restrict someone's behavior until they actually cause harm or if you have an agreement with the company where they pay you for x amount of damage to your property (this happens a lot in the oil and gas industry) and then the company violates that agreement by causing more damage.

Regulations are often either overbearing, outdated, nonsensical or simply encourage companies to do the minimum. Strict liability with no liability caps (hey, I want to take away some corporate welfare here) means that the person financially responsible be it the company or the insurance company that the company gets its liability insurance from is very interested that nothing goes wrong.

Another thing is that the EPA can preempt the tort claims of property owners or people under federal guidelines so that the government can collect fines but the actual persons being harmed cannot collect under civil courts.

And when a companies dangerous, cost effective decisions kills a worker because you "don't believe in regulation", is the family suppose to find relief that they can go to court?

Stupid.
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Old 03-16-2014, 12:30 PM   #32
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Originally Posted by LiveSteam View Post
EPA geeks, need to be shot on site.
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Old 03-16-2014, 02:08 PM   #33
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Unless I'm reading this wrong, it sounds like it's in dispute over whether he damned a creek.
You're not. The problem is the separate entities hardly ever agree on what a ditch or a creek actually is.

Soil district put in a new supply well. Hey guys, we'd be interested in putting a pond over here. It'd help control some of your water run off and erosion concerns and give my nieces a place to fish, how about it? Oh Noes! That's a ditch, it leads to a creek! We'd need a study! Oh Noes! 2 years later. Hey dumb farmer, we'd pay you to build a pond over there on that there piece of land you own. You would huh... Go **** yourself.
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Old 03-16-2014, 04:19 PM   #34
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thought this would be relevant to the discussion (although it deviates from the OP)....

http://www.nytimes.com/2014/03/16/us...site.html?_r=0

Quote:
Duke Energy, the giant utility whose spill of toxic waste into a North Carolina river last month is under federal investigation, released wastewater last week from a second site upriver of Raleigh that state regulators said could be illegal.

After a huge coal ash leak into the Dan River coated 70 miles of river bottom last month, state regulators cited Duke for violating water pollution laws at its plant in Eden, N.C., and five other sites, where ash from burning coal to generate electricity is held in large containment ponds.

The Dan River spill, the third-largest disaster of its kind on record, brought intense scrutiny to how Duke stored coal ash at 14 power plants throughout North Carolina, as well as to what critics called an overly cozy relationship with state regulators.
for those who are wondering what coal ash/slurry is, it is essentially "consists of solid and liquid waste and is a by-product of the coal mining and preparation processes." This also contains heavy metals and chemicals added that you wouldnt want in the environment, or drinking.

https://en.wikipedia.org/wiki/Coal_slurry
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Old 03-17-2014, 11:59 AM   #35
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Water rights are becoming HUGE all across the nation these days, its the new oil in many ways... control water and you control land.

Not sure where this case goes, if he dammed things up too much the neighbors might have case... but make no mistake, water is becoming a MASSIVE issue across the country.

Some gubment types don't even think you should be able to collect rainwater in some states, its not yours to collect, it belongs to the state...
It's always been huge. Particularly in the west. Whiskey's for drinking and water's for fighting as the old saw goes. This is nothing new. States are constantly fighting over flows from the Missouri River, contesting flow rates, dam releases and all manner of shit. Same for any waterway out there.
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Old 03-17-2014, 12:06 PM   #36
RaiderH8r RaiderH8r is offline
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Originally Posted by Loneiguana View Post
All, right, yea!!!

I only have an option to change a companies behavior AFTER they ruin my crops with water pollution.

That makes everything great!
Farming is the single largest source of water pollution in the us. Fertilizer runoff into watersheds has created nitrogen rich dead zones in the gulf and atlantic seaboard. Farmers bitching about water pollution... That's rich.

And that's before we get into animal wastes.

Bravo dude. Needed a laugh.
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Old 03-17-2014, 12:11 PM   #37
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Sounds to me like this guy did the right thing and received a proper permit from the state. EPA has it's uses, but the Enviro Wacko's want to give them nearly unlimited power, with which comes nearly unlimited abuses. This sounds like typical federal over reach.
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Old 03-17-2014, 12:14 PM   #38
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This is nothing they shoot beavers for doing this~
We had a beaver build a dam on our property, once and it made a little pond. It started to cause flooding up near the NY State Thruway. One day a guy from the state came and was like, "We're going to blow up the beaver dam."
I wished I could see them do it but I missed it.
It was too bad, the beaver was pretty cool to watch.
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Old 03-17-2014, 12:24 PM   #39
RaiderH8r RaiderH8r is offline
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Also, bone up on the Rapanos vs EPA court decision. In the case the court tried to narrow the definition of "navigable waters of the us" which is the hook to determining whether the CWA applies to a water project. The problem is that navigable waters is vague and wide open to interpretation. The court said a "significant nexus" to a navigable water must exist for the CWA to apply. Since the 2006 decision enviros and the EPA have been pushing the envelope to expand the nexus between waterways using any means of hydrology they can, including intermittent streams, arroyos, and seasonal gullies to be considered within the significant nexus definition of the court.

This language is from the findings section of a bill proposed in 2007 by Oberstar of MN. The bill sought to "clarify" the issue of navigable waters. These findings were put together by the NRDC and outlines the general view among enviros that all waters be subject to the CWA regardless of our understanding of their hydrology or true applicability of the CWA.

(3) To define the term `waters of the United States' and to protect such waters as authorized by the powers granted under section 8 of article I, section 2 of article II, and section 3 of article IV of the Constitution of the United States and in a manner consistent with the Federal Water Pollution Control Act and subsequent amendments thereto.
SEC. 3. FINDINGS.

Congress finds the following:
(1) The decisions of the United States Supreme Court in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers and the consolidated cases of Rapanos v. United States and Carabell v. United States Army Corps of Engineers unduly restricted the scope of the Federal Water Pollution Control Act and impair the statutory protections for waters of the United States contrary to the intent of Congress.
(2) Water is a unique and precious resource that is necessary to sustain human life and the life of animals and plants.
(3) Water is important for agriculture, transportation, energy production, recreation, fishing and shellfishing, and municipal and commercial uses.
(4) Water moves through interconnected hydrologic cycles, and the pollution, degradation, or destruction of a part of an aquatic system, including geographically isolated or intrastate waters, can affect the chemical, physical, and biological integrity of other parts of the aquatic system.
(5) Small and intermittent streams, including seasonal streams, and their headwaters comprise the majority of all stream and river miles in the conterminous United States. These waters affect the introduction of pollutants to larger rivers and streams, the life cycles of aquatic organisms and other wildlife, and the flow of higher order streams during floods.
(6) The pollution, degradation, and destruction of waters of the United States, individually and in the aggregate, have a substantial relation to and effect on interstate commerce. Discharges of pollutants into waters of the United States are the result of, relate to, and are a necessary part of commercial or economic activity.
(7) Millions of people in the United States depend on the waters of the United States, including wetlands, to improve water quality, recharge surface and subsurface drinking water supplies, protect human health, and create commercial or economic opportunity. Source water protection areas containing one or more small or intermittent streams provide water to public drinking water supplies that serve more than 117,000,000 people in the United States.
(8) Millions of people in the United States enjoy recreational activities that depend on the waters of the United States, including wetlands, and those activities and associated travel generate billions of dollars of income each year for the travel, tourism, recreation, and sporting sectors of the economy of the United States.
(9) Protecting the waters of the United States from discharges of pollutants, degradation, and destruction is a necessary and proper means of implementing treaties to which the United States is a party, including treaties protecting fish, birds, and wildlife.
(10) Protecting the waters of the United States from discharges of pollutants, degradation, and destruction is a necessary and proper means of protecting the territory or other property belonging to the United States, including parkland, refuge land, and other land under Federal ownership and the waters encompassed by that land.
(11) Administrative and judicial interpretations of the Federal Water Pollution Control Act have treated ground water separately from `waters of the United States' as that term is used in such Act, and ground water has not been considered to be `waters of the United States' under such Act. This Act and the amendments made by this Act do not affect those administrative and judicial interpretations.
(12) This Act and the amendments made by this Act do not affect the authority of the Secretary of the Army or the Administrator of the Environmental Protection Agency under the provisions of the Federal Water Pollution Control Act as interpreted or applied by the Secretary or Administrator as of January 8, 2001.

And here is how the bill would have defined waters of the us (ie navigable waters):

SEC. 4. DEFINITIONS.

Section 502 of the Federal Water Pollution Control Act (33 U.S.C. 1362) is amended--
(1) by repealing paragraph (7); and
(2) by adding at the end the following:
`(26) WATERS OF THE UNITED STATES-
`(A) IN GENERAL- The term `waters of the United States' includes--
`(i) all waters that are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters that are subject to the ebb and flow of the tide;
`(ii) all interstate and international waters, including interstate and international wetlands;
`(iii) all other waters, including intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation, or destruction of which does or would affect interstate or foreign commerce, the obligations of the United States under a treaty, or the territory or other property belonging to the United States;
`(iv) all impoundments of waters otherwise defined as waters of the United States under this paragraph;
`(v) tributaries of waters identified in clauses (i) through (iv);
`(vi) the territorial seas; and
`(vii) waters, including wetlands, adjacent to waters identified in clauses (i) through (vi).

Considering the findings, purpose and definition, it is hard to conclude which waters in the us would not be subject to such consideration under the CWA. Giving EPA bureaucrats total authority over water in the us would be a catastrophic concession of individual and property rights in the us. Talk about someone upstream diverting water flows and screwing farmers downstream? This would give EPA authority over every water right in the us and a hook into every commercial, retail, housing, farming, ranching, and power operation in the us. This is the form, fashion and manner in which the EPA will proceed until litigated against and hopefully the court further narrows the scope and definition of navigable waters. Conversely you can expect the EPA to continue to push the envelope o expand their reach and scope on this issue as they have on numerous others.
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