(Kathy Hoekstra, Watchdog.org) Calling it one of the worst examples of federal regulation, President Donald Trump signed an executive order Feb. 28 directing the Environmental Protection Agency (EPA) to review and revise its “Waters of the United States” (WOTUS) rule.
During the signing ceremony, Trump mentioned a real-life example of the rule’s draconian overreach:
“In one case in Wyoming, a rancher was fined $37,000 a day by the EPA for digging a small watering hole for his cattle. His land. These abuses were, and are, why such incredible opposition to this rule from the hundreds of organizations took place in all 50 states. It’s a horrible, horrible rule.”
Andy Johnson is that rancher. He tells Watchdog.org that he knew his case was a big deal, but he didn’t expect it to be top of mind for the president of the United States.
“I think it’s crazy. But you know, this whole thing for us has been really, really crazy,” said Johnson. “Our name and case just seem to keep going around. It’s like the officials — senators, governors, anybody that’s having a problem with the EPA, the case is just a good example of how ridiculous [the EPA] can really be.”
Johnson built a stock pond on his property in 2012. Once the EPA caught wind of it, the agency ordered he tear up the pond or face fines of $37,500 per day for violating the Clean Water Act. With help from the nonprofit Pacific Legal Foundation, Johnson sued the EPA and succeeded in getting the agency to finally back off in a May 2016 settlement.
It was about money
“We had 100 different reasons why we built the pond. It wasn’t just for our animals. It wasn’t just for aesthetics. It was for all types of reasons. There’s fish and there’s wildlife and it’s awesome,” Johnson said. “And [the EPA] made it out to be the most horrible thing. They claimed that I discharged pollutants into the waters of the U.S. At the end of the day, it was more about money than it was any other aspect of our case. It was about money and the future of them coming after more people and getting more money. It just kind of made my skin crawl.”
WOTUS gave the EPA cover to find more landowners like Johnson.
Promulgated in 2015, the rule purportedly aimed to clarify the definition of “navigable” waterways under the Clean Water Act. In doing so, the EPA and Army Corps of Engineers broadened the meaning to nearly any piece of ground where water could collect, including isolated pools, ditches and prairie potholes. These became subject to federal control, even on private property.
Environmentalists and conservation groups applauded the rule, claiming it would protect more waterways from polluters. Opponents said it unconstitutionally expanded EPA reach into states’ jurisdiction and Americans’ property rights.
Trump’s executive order has turned the tables, however, much to the relief of landowners, farmers, ranchers and others who were living in fear of federal regulators.
Reed Hopper of PLF was Johnson’s supervising attorney in Johnson’s case, but his work isn’t over.
The U.S. Court of Appeals for the Sixth Circuit ordered a stay in 2015 when a flurry of lawsuits by states and groups of farmers, ranchers, landowners and others started flooding courts around the country. Those suits are now in limbo until the rule’s legality can be determined.
Hopper says the president’s executive order virtually ensures that case is over, although there’s one more legal issue that’s still up in the air — venue.
“It’s likely the EO will moot the Sixth Circuit case. In the Sixth Circuit we’re litigating the actual validity of the rule. ‘Is it legal or not?’ And that case will probably go away. The other question, though, is does this EO moot the case in the Supreme Court, where we’re litigating the jurisdiction of the courts to hear challenges to the WOTUS rule?”
Since the executive order calls for the EPA to review and revise WOTUS, the rule could creep back onto the books. Hopper says the Supreme Court will hear another case this spring to determine where future challenges should take place.
“We need to know which court to bring the challenge in or if we choose to even defend the new rule,” he said. “The Supreme court can and should resolve the question of venue so that the regulated public knows where challenges to these types of rules should be brought — in the District court or Court of Appeals.”
The Supreme Court will hear arguments in that case, NAM v. DOD, later this spring.
Johnson, meanwhile, knows he’s lucky. According to the terms of his settlement, he and his family are immune from any further attacks by the EPA.
And while he didn’t ask for either persecution by the EPA or recognition by President Trump, he hopes his family’s ordeal will be an inspiration for others.
“I think our case represents the everyday people, and how the EPA and government tries to put the hammer down on things that really have no significance to them whatsoever. And really doesn’t affect the environment,” said Johnson. “You come in and try to bully the everyday guy and family and sometimes it doesn’t work out like that.”