Opinion: Columnists

Senators John Barrasso, David Vitter and Mike Enzi warn of EPA moves to control all water

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Opinion,Ron Arnold,Columnists,Wyoming,EPA,Mike Enzi,John Barrasso

Wyoming welder Andrew Johnson had a state permit, so he thought he was building a perfectly legal stock water pond for his livestock where Six Mile Creek runs through his private farm in Uinta County.

But U.S. Environmental Protection Agency enforcers said Johnson was actually building a dam in violation of the Clean Water Act.

Johnson’s permit from the Wyoming State Engineer’s office to build a “stock reservoir” is dated June 28, 2010, reflecting years of his careful preparations for the pond, including visits by EPA and Army Corps of Engineers agents to see the work, followed by a cordial multi-agency conference call in mid-2013 in which everything seemed fine.

Then, on Jan. 28, without notice and without due process, EPA regional bureaucrat Andrew M. Graydosh issued a compliance order requiring Johnson to return the creek to its original condition in 60 days.

Graydosh threatened Johnson with fines of $75,000 per day per violation – which could reach $187,500 per day, or over $5.5 million in a month – if he didn’t comply. Johnson had 10 days to reply.

Graydosh’s foaming-at-the-mouth, sentence-without-trial demand, reeking of disgraced EPA official Al Armendariz’s “crucify them” attitude, crushed a citizen’s constitutional right to face his accusers.

Some of Johnson’s fellow Wyoming residents contend ultra-greenies, including one federal employee in particular, nullified a lawful state permit.

They also infuriated Wyoming’s two U.S. senators, who requested the EPA to “immediately withdraw the compliance order.”

In a March 12 letter to EPA water boss Nancy Stoner, three Senate Environment and Public Works committee Republicans - Ranking Member Sen. David Vitter of Louisiana, and Wyoming's Mike Enzi and John Barrasso - characterized EPA's vile treatment of Johnson as “a draconian edict of a heavy-handed bureaucracy."

They also called it “an ominous signal of EPA's intentions for its current ‘waters of the United States’ rulemaking.”

Ominous indeed, for this vicious government surprise attack against a private citizen represents a potential threat against everybody.

The “rulemaking” the senators referred to is Big Green’s years-long campaign to remove the word “navigable” from the Clean Water Act, so that all water, not just navigable water, falls under its regulatory authority.

EPA justified its demand to Johnson by claiming that “Six Mile Creek is a perennial tributary of the Black Fork River, which is a perennial tributary of the Green River. The Green River is, and was at all relevant times, a navigable, interstate water of the U.S.”

Neither Six Mile Creek nor the Black Fork River are navigable. With such connect-the-dots logic, EPA could declare kitchen sinks are navigable U.S. waters. Is the EPA planning to unilaterally declare municipal water supplies to be tributaries of tributaries of tributaries?

How long before private water wells become subject to the EPA regulating every American’s “PDWR” – “personal daily water ration”?

The senators saw that specter looming on the EPA’s horizon and wrote that 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.”

Johnson's lawyer, Daniel B. Frank of Cheyenne, said “we filed a Freedom of Information Act request for EPA's documents related to their claim of jurisdiction over Mr. Johnson's stock water pond, and we're still waiting for a reply.”

That reply will determine how they proceed. It’s possible that, even if the EPA shows its claim of jurisdiction to be valid, Johnson can obtain an after-the-fact exemption under existing law.

There's more behind this EPA assault on Johnson. When Big Green's water-grabbing Clean Water Restoration Act of 2010 failed in Congress, the Obama administration simply proposed a “guidance” - a document stating a policy position - that attempted to seize all state waters without any legal authority.

On May 14, 2013, Barrasso proposed an amendment to the Water Resources Development Act to nullify that guidance. His amendment won 52 Senate votes, with eight Democrats voting with the Republicans.

But Senate Majority Leader Harry Reid set an arbitrary threshold of 60 votes for the amendment's passage as a pre-condition for even allowing a vote on the measure. So the amendment didn't become law. The guidance lacks legal authority but EPA still acts as if it does.

All but eight Senate Democrats voted for the federal government to seize all waters, and did so with the 2014 mid-term election just months away. The Senate could sure use some climate change.

RON ARNOLD, a Washington Examiner columnist, is executive vice president of the Center for the Defense of Free Enterprise.
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