The Swamp Stomp

Volume 14, Issue 11

We have another wetland violation case to talk about.  This story broke last week and is about a small landowner, Mr. Allan Johnson who had built a stock pond on his property.  The case has not gone to court, but in an unusual turn of events three US Senators offered to help Mr. Johnson by sending a strongly worded letter to EPA.

So here is what happened.  Mr. Johnson owns a small 8-acre farm in Wyoming.  He wanted to construct a stock pond on his property and went to the state for the required permits.  No you may ask, why did he not go to the Corps or EPA?  The answer is that under Section 404 (f) (1) (c) stock ponds are exempt.  The reason they are exempt relates to water quality impairment.  If it is determined that there is no degradation to water quality then they fall under the farm exemption.  This determination is made by the state.  He did go to them.

This is the current Clean Water Act rule on this point.

Clean Water Act Section 404 (f)(1)(c)

(f) (1) Except as provided in paragraph (2) of this subsection, the discharge of dredge or fill material –

(C) for the purpose of construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches;

(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.

Back before the new EPA rules started floating around the state made the water quality calls.  This was something called a section 401 water quality certification.  I used the term “was” because under the new rules it does not seem that the state needs to get involved anymore.  EPA has it covered.  Separation of powers is so inconvenient and inefficient.  Sorry,  I digress.

In 1987 the Corps had issued a now expired regulatory guidance letter (RGL) that detailed the terms and conditions in which a stock pond would be exempt.  Its focus was on the physical extent of the pond and how it was to be used.  The Corps was concerned about the construction of the stock pond for other uses such as residential amenities.   There is a quote that is worth mentioning.

“For Section 404(f)(2) to apply, the construction or maintenance activity must bring a water into a use to which it was not previously subject and impair the flow or circulation or reduce the reach of such waters. Both of these determinations are judgment calls which must be made in a reasonable fashion. It could be argued that one shovel-full of material placed in waters of the U.S. would reduce the reach. Such an argument is not reasonable and would defeat the purpose of the exemption. “

However, the RGL is no longer in use.  The impacts to the streams became the new focus of the Corps, but the exemption till remains today.

So how are the waters deemed impaired?  That is up to the state.  Section 401 of the Clean Water Act is all about the states roles in deciding water quality impact.  Sections 404 only deals with discharge of dredge and fill material.  This has just become a state’s rights issue.  By the way, Mr. Johnson received all of the required state permits.

So what is a stock pond?

A stock pond is nothing more the blocking up of a small stream to create a pond.  These are often referred to as farm ponds.  There is usually some excavation to deepen the pond.  In order to fall under the exemption, the pond must serve an agricultural purpose.  Activities such as irrigation, live stock watering, and minor flood controls are all examples of stock ponds.  They can also serve some passive recreational uses such as a fishing hole or swimming pond, but that cannot be their main purpose.

So what went wrong?

On January 30, 2014 the US EPA issued a compliance order stating that Mr. Johnson placed fill material into a waters of the US.  On October 11, 2012 the US Army Corps of Engineers conducted a site inspection of Mr. Johnson’s pond.  They found that approximately 12 cu yards of material was placed below the ordinary high water mark of Six Mile Creek.  The Corps further estimated that 40 feet of stream was filled and an additional 745 feet of stream was inundated by the new pond.  On October 26, 2013 the Corps notified Mr. Johnson that a standard Clean Water Act permit would be required.  Can we assume that means a nationwide permit?

It does not appear the Mr. Johnson responded to the Corps.  However, in numerous news articles about this case he has stated that he contacted the state engineer and received the necessary state permits.  As a result on February 7, 2013 the Corps turned this case over to EPA for enforcement.  In case you were wondering how the Corps enforces wetlands cases now you know.  They do not.  The EPA does.

On May 20, 2013 the USEPA conducted a site inspection of the pond and found that the 40 foot stream reach was impacted by the pond dam and that 785 feet of stream (40 feet more) had been impacted by the pond.  Maybe it rained.

Now there are several troubling points about this case.  First was the Corps or EPA invited onto Mr. Johnson’s property?  If not, did they have a warrant, signed by a judge?  Neither the EPA nor the Corps can enter onto a property unless they have probable cause and this may still require a written warrant.

The second point is related to the Sackett case two years ago.  The EPA is demanding in its compliance order that certain remedies must be implemented or Mr. Johnson faces a $75,000 per day fine.  It is important to note that the Supreme Court unanimously found in the Sackett case that the EPA must follow the Administrative Procedures Act rules with regards to 404 violation cases.  The compliance order does mention this as the very last item.  The good news is that he can bring this case to a judge ahead of an enforcement action.

The EPA did state in its compliance order that Mr. Johnson should retain the services of a consultant to determine if the waters in question are waters of the US.  Unlike the Sacketts, I do not think this is in dispute.  Rather, the issue is the type of device that he constructed.

This brings me to my final point.  The entire issue is related to whether Mr. Johnson built a stock pond or a dam.  I do not know how you build a stock pond without a dam so I can easily see his point.  However, what concerns me is the fact that there was some sort of state approval of the structure. Presumably, the state felt it was a stock pond.  Under the rules for stock ponds a state permit is required.  By all accounts, Mr. Johnson followed those rules.  Is the State of Wyoming’s determination that this is a stock pond in question?  If so, should the violation be directed at the state?  Can EPA override the state’s determination right now?

Coming Soon to a Farm Near You

Don’t worry, once the new waters of the US rules go into effect this issue will be crystal clear.  The state will have no say in the matter and Mr. Johnson is looking at some major fines.

Keep an eye our for the new rules.  This is an example of what is coming.