CHEYENNE – For a southwest Wyoming man, a nearly three-year court battle with the U.S. Environmental Protection Agency is finally over.
On Monday, Andy Johnson of Fort Bridger reached a settlement with the EPA, allowing him to keep a stock pond he built on his property in 2012.
Johnson had originally constructed the pond to water cattle. The EPA informed Johnson that the pond, which is connected to Six Mile Creek south of Fort Bridger, was in violation of the Clean Water Act.
Johnson maintained that he had sought and received a permit through the State Engineer’s Office, which confirmed that the stock pond met all of the office’s legal requirements.
But the EPA did not relent, sending Johnson a compliance order in January 2014 instructing him to remove the stock pond or face $37,500 in fines for every day he refused to do so.
In August 2015, Johnson’s case was taken up by the Pacific Legal Foundation, a California-based public interest law firm and self-described watchdog organization that specializes in arguing for limited government, property rights and individual rights. And on Monday, PLF attorney Jonathan Wood prevailed, as U.S. District Judge Scott Skavdahl signed off on a consent decree allowing Johnson to keep his pond.
“The settlement is a clear win for Andy. He’s not going to have to rip out the pond; he won’t pay a nickel in fines,” Wood said. “He won’t have to get a federal permit. All he has to do is build on the environmental improvements he’s already made.”
Specifically, the consent decree requires that Johnson supplementhis pond by planting some “dormant live willows” in the area and build a fence on the north side of the pond for livestock control. Aside from that, the decree states that “the United States, its departments or agencies, covenant not to sue or take administrative action against Mr. Johnson under the Clean Water Act” with respect to its original complaint involving the stock pond.
Yet despite the victory, Wood said all of this could have been avoided if the EPA had simply listened to Johnson when he first protested the agency’s concerns. From the very beginning, Wood said the agency had inaccurately characterized the stock pond and the body of water it connected to.
“Stock ponds are exempt from the Clean Water Act, and the stream Andy dammed isn’t under federal jurisdiction,” Wood said. “It has to open into a navigable waterway to be subject to (the Clean Water Act), and this one doesn’t; it flows into a manmade irrigation canal.”
Wood noted the consent decree does not require the EPA to admit any fault in its original action against Johnson. And there’s also essentially no recourse for Johnson to seek redress for the countless sleepless nights he’s had to endure, wondering whether he would eventually have to pay the millions in fines he had accrued.
But even so, Wood said Johnson’s case, as well as its outcome, should give hope to others facing a similar action by the EPA.
“When he first got the compliance order, Andy panicked because there was no one in the past he could look to for assurance,” Wood said. “But now, Andy can be that person for people in the future. This case doesn’t set a legal precedent, but practically, it gives an example and a roadmap to anyone who finds themselves in Andy’s situation.”
Reached by phone Tuesday, Johnson said he was relieved his legal battle was at an end. He was also thankful to PLF, other attorneys and many others for their support.
“I would say about 98 percent of everybody has sided with us,” Johnson said. “We get letters in the mail all the time, all kinds of support from just everyday people. I think everybody shares the same frustration with the EPA.”
Johnson added that although the threat of hefty fines caused he and his family plenty of stress, he also feels the process has been worth the struggle.
“It weighed on us quite a bit, but it’s also given me an education I couldn’t have learned anywhere else,” he said. “Looking back on it, I’m somewhat thankful for the experience, the people we’ve met and the places we got to see.”
Johnson’s legal victory also drew the attention of Wyoming’s three-member Republican congressional delegation, including U.S. Sen. John Barrasso, who lauded Johnson’s victory, but also argued that “it shouldn’t have come to this.”
“Local land-use decisions should never be driven by Washington, and the EPA should never be able to fine someone millions of dollars for building a pond on their own land,” Barrasso said in a statement. “This settlement is a welcome rebuke of an agency that has gone too far.”