Wyoming Landowner Wins Battle With EPA Over Stock Pond
By Burt Carey
All Andy Johnson wanted was a small pond to provide water for his cattle. What he got was a $16 million fine from the Environmental Protection Agency.
Johnson, a professional welder who owns a 9-acre cattle farm in Fort Bridger, Wyo., received permits from the state to build a 40×300-foot pond on an existing stream in 2012. When he built the pond the following year, the federal EPA threatened him with fines of up to $37,500 per day if he didn’t drain and dismantle it.
With help from the Pacific Legal Foundation, Johnson took the EPA to court. This week the federal agency settled the case. The settlement, approved by a federal judge, does not concede any federal jurisdiction to regulate the pond and removed all of the fines. It further allows Johnson to keep his pond so long as he adds willow trees and fencing to control cattle movements near it.
“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 PLF who represented Johnson. Local counsel Dan Frank, Karen Budd-Falen, and Maegan Woita of Mountain States Legal Foundation, as well as Ray Kagel of Kagel Environmental, LLC, assisted the PLF.
Kagel, a former federal regulator, said the pond is a benefit to the environment. It created wetlands, habitat for fish and wildlife, and cleans the water that passes through it. Rather than showing gratitude for creating all of these environmental benefits, the federal government accused Johnson of violating the Clean Water Act.
For nearly two years, Johnson tried to explain that he had done nothing wrong. Ultimately, he had to sue the 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. Under Supreme Court precedent, the federal government can regulate waters only if they have a “significant nexus” to navigable waters. Johnson’s pond drains to a manmade irrigation ditch, where the water is used for agriculture.
“You can imagine how terrifying it must be to receive such an order,” said Wood. “In an instant, Andy Johnson’s future, and that of his children, was thrown into turmoil. Would he be prosecuted? Would he be assessed large fines that, being an ordinary person, would cause his family’s financial ruin? Would the government essentially take control over his property, which was also his home?”
“This settlement is a win for the Johnson family, and a win for the environment,” said Wood. “Under it, the Johnsons will pay no fine. They will not lose their property. They will not have to agree to federal jurisdiction or a federal permit, which would have surely entailed onerous conditions. In effect, the government will treat the pond as an exempt stock pond, in exchange for Andy further improving on the environmental benefits he has already created.
“This is a huge victory for us as well as private property owners across the country,” said 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, you stand up to the overreaching bureaucrats, they may very well back down. If we could say anything to the EPA, 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!”
Source: Baret News