In 2012, Wyoming farmer Andy Johnson dammed a stream on his private property, creating a stock pond to provide water to his livestock. The pond was constructed to maximize its incidental environmental benefits, including creating habitat for fish, wildlife, and migratory birds, establishing wetlands, and cleaning the water that passes through the pond. Nevertheless, in January, 2014, the EPA issued a compliance order against him, claiming that the deposit of dredge and fill materials to create the dam violates the CWA, and threatening him with fines of $37,500 per day that he doesn’t do what EPA demands.
Thanks to PLF’s Supreme Court victory in Sackett v. EPA, Johnson could challenge this illegal compliance order in court. Representing Johnson in a federal lawsuit, PLF argued that his acts did not violate the CWA for two reasons. First, the construction of a stock pond is expressly exempt from the Act. Second, under Supreme Court precedent, the federal government can only regulate waters with a continuous surface water connection or that have a “significant nexus” to navigable waters. The stream in which Johnson constructed the stock pond drains to a man-made irrigation ditch, where the water is used for agriculture; it does not affect navigable water.
Faced with the prospect of defending the indefensible in court, the EPA agreed to settle. While Johnson and PLF believe they would have prevailed in court, the Johnson family had already spent years under the cloud of this prosecution and could not bear more years of uncertainty during the litigation. Under the settlement, the Johnsons’ pond remains in place, Johnson won’t pay any fines and doesn’t concede any federal jurisdiction over the pond. He will simply improve on the environmental benefits already created by the pond. For its part, the government agreed that it won’t pursue any further enforcement actions based on the pond’s construction.