Settlement in Wyoming stock pond case

May 09, 2016 | By JONATHAN WOOD

The Johnson family’s long ordeal with EPA, concerning their construction of an environmentally-friendly stock pond on their private property, 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 settle the case. Importantly, under the settlement, the Johnsons’ 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.

As you may recall, 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 former federal regulator Ray Kagel has documented, the pond proved to be an absolute benefit to the environment. It created wetlands, habitat for fish and wildlife, and actually 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 $37,500 per day if he did not comply.

You can imagine how terrifying it must be to receive such an order. 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, arguing that the order it had issued 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 only regulate waters with a continuous surface water connection or that have a “significant nexus” to navigable waters. Andy Johnson’s pond drains to a man-made irrigation ditch, where the water is used for agriculture.

The settlement brings an end to all of the uncertainty and fear the Johnson family faced. Under it, they will pay no fine. They will not lose their property. Nor will they 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.

Under the settlement, Andy will plant willows around the pond and temporarily fence off part of it from livestock. (The irony — that EPA insists this isn’t a stock pond while their chief concern appears to be how livestock reach it — isn’t lost on anyone.)

Although Andy would have liked to litigate his case to the end—to vindicate not only his rights, but also those of others who find themselves in his situation—this was a deal 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. Only a foolhardy person would subject his family to that rather than accept such a favorable settlement.

PLF appreciates the assistance our hard-working local counsels in this case—Dan Frank, Karen Budd-Falen, and Maegan Woita (of Mountain States Legal Foundation)—and environmental consulting from Ray and Susan Kagel of Kagel Environmental LLC.