Kurt Strazdins KRT/Newscom

Kurt Strazdins KRT/Newscom

Andy Johnson’s land is drenched in his blood, sweat, and tears—and he’s willing to go bankrupt to keep it that way.

In fact, he just might have to: The Environmental Protection Agency is threatening to extract $75,000 a day from him for building, on his own land, an unauthorized duck pond.

According to Fox News, Johnson’s ambitions were modest: He and his wife Katie wanted to build a stock pond on their Wyoming farm, a place where their horses could drink and graze, and their three children could play.

But an EPA order on January 30 cast Andy and Katie’s dream in a very different light. Specifically, it stated that Johnson’s pond is, in fact, a “dam,” and that Johnson violated section 301(a) of the Clean Water Act by building the dam without a permit from the Army Corps of Engineers. The order commands Johnson to develop a plan to restore his property or be subject to two separate fines of $37,500: one for failing to obtain a permit, and the other for failing to comply with the order—a total of $75,000 per day.

Johnson argues that he does not need a permit because his pond qualifies for an exemption as a “stock pond.” Three Republican senators—John Barrasso and Mike Enzi, who represent Wyoming, and David Vitter from Louisiana—have taken up his cause. In a March 12 letter to the EPA, the lawmakers condemned the agency’s order as “a draconian edict of a heavy-handed bureaucracy” and protested that the agency had, in effect, assumed guilt:  “Instead of treating Mr. Johnson as guilty until he proves his innocence by demonstrating his entitlement to the Clean Water Act . . . stock pond exemption, EPA should make its case that a dam was built and that the . . . exemption does not apply.”

But the eye-popping aspect of this story is the severity of the penalties threatened. It’s absurd to threaten someone with tens of thousands of dollars in fines because he or she lacks a permit. And it might also be unconstitutional.

The Framers of our Constitution recognized that, at a certain point, penalties become unconstitutionally disproportionate. The Eighth Amendment’s Excessive Fines Clause reflects that understanding. In Austin v. U.S. (1993), and again in U.S. v. Bajakajian (1998), the U.S. Supreme Court explained that “[t]he Excessive Fines Clause limits the government’s power to extract payments, whether in cash or in kind, as punishment for some offense,” and held that civil sanctions that do not serve solely remedial purposes are subject to the Excessive Fines Clause. It is impossible to understand the threatened fines as serving a purely remedial purpose—surely, repairing any damage that Johnson inflicted would cost less than $75,000 a day. But, under the terms of the CWA, he is potentially subject to such penalties as a consequence of his failure to obtain a permit.

The Framers knew better than to leave bureaucrats free to impose penalties on this scale for conduct of this kind. Such penalties can destroy lives—a fact that should scare us more than any unauthorized pond. The Johnsons’ pond may or may not qualify for an exemption from the Clean Water Act, but the Constitution does not allow the EPA to mulct the Johnsons of the fruits of their labor over a permit.