Cheyenne, Wyoming; May 9, 2016: The long ordeal that Andy Johnson and his family went through with the Environmental Protection Agency, concerning their construction of an environmentally friendly stock pond on their private property in Bridger, Wyo., is finally over. After ordering Andy Johnson to remove the pond, on pain of tens of millions of dollars in potential fines, the federal government has agreed to a settlement of the case – and a federal court approved the settlement this week.
Importantly, under the settlement, the Johnson family’s pond will remain; they won’t pay any fines; they don’t concede any federal jurisdiction to regulate their pond; and the government won’t pursue any further enforcement actions based on the pond’s construction.
“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 who represented Andy Johnson in his court challenge to the EPA, and in negotiating the settlement. PLF was assisted by local counsel Dan Frank, Karen Budd-Falen, and Maegan Woita of Mountain States Legal Foundation, as well as Ray Kagel of Kagel Environmental, LLC.
Andy Johnson’s saga began in 2013, when, pursuant to a state permit, he built a stock pond on his property to provide safer, more reliable access to water for his small herd. As documented by Ray Kagel, a former federal regulator, the pond proved to be 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 Andy of violating the Clean Water Act. EPA’s order demanded that he rip out the pond and threatened him with fines of $37,500 per day if he did not comply.
“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?”
For nearly two years, Andy tried to explain that he had done nothing wrong. But that was to no avail. Ultimately, he 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. Under Supreme Court precedent, the federal government can regulate waters only if they have a “significant nexus” to navigable waters. Andy Johnson’s pond drains to a manmade irrigation ditch, where the water is used for agriculture.
“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.
“The settlement provides that Andy will plant willows around the pond and temporarily fence off part of it from livestock,” Wood continued. “Of course, there is some irony in this last provision: The EPA insists this isn’t a stock pond, while their chief concern is how livestock reach it. Nevertheless, this settlement is one that Andy simply could not turn down. Although he would have liked to litigate his case to the end and win a victory for all property owners who find themselves in similar unfair situations with regulators, this was the proverbial deal that was too good to refuse. Litigating would have certainly taken years, if not decades. All the while, he would have had to continue to live with the uncertainty that has plagued his family for the last three years. He could not subject his family to a continued ordeal rather than accept such a favorable settlement.”
“This is a huge victory for us as well as private property owners across the country,” said Andy 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. “Thank you to PLF, MSLF, Dan Frank, Ray and Susan Kagel, Karen Budd-Falen, Harriet Hageman and the many, many others that supported our case. And 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!”
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