EPA settles Johnson’s Clean Water Act caseWritten by Saige Albert
Cheyenne – On May 9, a consent degree was filed at the U.S. District Court in the District of Wyoming, effectively settling the Clean Water Act case of Andy Johnson v. U.S. Environmental Protection Agency (EPA), et. al.
Cheyenne Attorney Dan Frank of Frank Law Offices says, “This is the end of this case. I would say that this is a win for us.”
The requirements set forth in the consent decree were described by Frank as actions that Johnson had already begun working towards.
“We had to plant some willows, which he already did, and then he has to submit a compliance report this year and next year showing that the willows are surviving,” Frank commented. “He also had to put in a fence.”
“This is a victory for common sense and the environment, and it brings an end to all the uncertainty and fear that the Johnson family faced,” said Jonathan Wood, a staff attorney with Pacific Legal Foundation (PLF) who represented Johnson in his court challenge to the EPA, and in negotiating the settlement.
“This is a huge victory for us, as well as private property owners across the country,” says Johnson. “The next family that finds itself in our situation, facing ominous threats from EPA, can take heart in knowing that many of these threats will not come to pass. If, like us, that family stands up to the overreaching bureaucrats, they may very well back down.”
A look back
Frank notes that Johnson first approached him in 2013 on a referral from Harriet Hageman of Hageman Law.
EPA told Johnson he must remove a stock pond he had built to provide safer, more reliable access to water for a small herd of cattle. EPA also imposed strict fines of $37,500 per day if he did not comply with the order.
“We set up our case and hired Kagel Environmental,” Frank explains. “Our choices were to let this thing ride or take the battle to EPA. That’s when PLF agreed to get involved in the case. They did the heavy lifting once we proceeded to federal court.”
As documented by Ray Kagel, a former federal regulator, the pond proved to be a benefit to the environment, says PLF.
Ultimately, Johnson had to sue EPA, represented by PLF and local counsel, arguing that the order was illegal because “stock ponds” like his are expressly exempt from the Clean Water Act. Additionally, he challenged the government’s assertion of jurisdiction.
“Andy obtained a permit from the state engineer for the stock pond, and he thought he was in the clear,” Frank says. “He believed he had done everything that he was supposed to do.”
After a day in settlement talks with a federal magistrate, Frank says that the outcome is largely favorable.
“What Andy has to do to comply with the consent decree is actually good for his property,” he says. “It’s things he probably would have done anyway.”
Johnson is required to plant willows and document that they have survived through September 2017. In addition, he is required to install an exclusion fence on one side of the pond.
While the case is a win for the Johnson family, Frank notes that because it is a settlement, no legal precedent is set.
“EPA just basically said, all right. We’ll call this a draw. We won’t sue Andy, and he can’t sue us,” Frank comments.
With the case behind him, Johnson says, “This was about more than just a pond. This was about a family of good, hard-working Americans that were willing to fight to the end for what they believed in.”
“We’re not setting any precedent with this case, but it does get into the tricky issue of stock ponds,” Frank says.
He continues, “Under Section 404 of the Clean Water Act, there is a recapture provision where, if we have certain impacts on the water, the EPA can come in and say that the pond is not really exempt as a stock pond.”
Ultimately, Frank notes that the CWA provides the exemption but also comes up with a way for EPA to remove that exemption and claim jurisdiction regardless.
“We contend this was a stock pond and that is it exempt from the Clean Water Act,” he adds. “EPA says no.”
EPA did not provide reasons or justification that the pond was not exempt, and as a result of the settlement, those answers will not be determined.
Another issue in the case was the assertion that the fill material used required permitting.
“There is already a national permit for projects that have less than 10 cubic yards of fill and inundate less than one acre of land,” Frank explains. “In this case, there was wetlands, but this particular stream did not show up on the National Wetlands Inventory.”
Additionally, Johnson did not fill wetlands. The fill material he utilized within the ordinary high water mark of the creek wasn’t more than 10 cubic yards, which would have exempted him, says Frank.
“The final issue was that the EPA and Army Corp of Engineers didn’t have jurisdiction over the water because it never actually gets back to the Black’s Fork River,” he says, explaining that the creek, Six Mile Creek, where the pond is located, dumps into Bridger Butte Canal, which flows into a reservoir that does not overflow.
Frank comments, “There were three good reasons that the EPA was out of line.”
For other landowners
While Johnson’s case is resolved, Frank urges other landowners to be cognizant of all the issues when building stock ponds.
“I would always be concerned if I was going to build a stock pond,” he says. “We can look at it two ways.”
One option, when building a new pond, would be to contact the Army Corp of Engineers directly.
“The Army Corp of Engineers is going to try to find a way that they get to regulate the pond,” Frank says. “The other way would be to contact legal help and a consultant before doing a project.”
Frank adds that it is important that landowners are prepared and have done their homework prior to building any stock ponds on their property.