In a 21st century replay of the biblical battle between David and Goliath, Wyoming rancher Andy Johnson felled the most powerful regulatory giant in the country, the Environmental Protection Agency (EPA).
Johnson, owner of a small, 8-acre horse and cattle ranch in Fort Bridger, had been charged by EPA for violating the Clean Water Act (CWA) by putting a stock pond on his land. Because stock ponds are common on farms and ranches, they are expressly exempt from regulation by EPA and the U.S. Army Corps of Engineers under the CWA. Being familiar with the CWA’s exemption, Johnson, in 2012, obtained the proper state permits and set about damning up Six Mile Creek, which runs through his land, to create the stock pond.
“Navigable Interstate Water of the United States”
Ignoring the exemption, EPA, in January 2014, ordered Johnson to restore the pond to its original condition or face fines of $37,500 a day. EPA says that Six Mile Creek is a tributary of the Green River, which, according to the agency, is a “navigable interstate water of the United States,” thereby making Johnson’s stock pond subject to the CWA jurisdiction. The agency also claimed that the sand, gravel, and rocks used to construct the dam constitute “dredged material” and ”pollutants” under the CWA. By the spring of 2016, Johnson was looking at $20 million in fines.
Accustomed to dragging small landowners and business owners through costly litigation, EPA no doubt assumed that Johnson would throw in the towel. He didn’t. Instead, he enlisted the services of the Sacramento, Cal.-based Pacific Legal Foundation (PLF) and the Cheyanne, Wyo.-based Budd-Falling law firm.
When the smoke cleared, it was EPA – and not Johnson – that capitulated. In a settlement reached in May, Johnson agreed to plant willow trees and temporarily limit livestock access to a portion of the pond. In exchange, Johnson and his wife will pay NO fines.
“They will not lose their property. They will not have to agree to federal jurisdiction or a federal permit, which would surely have entailed onerous conditions,” PLF attorney Jonathan Wood told the Washington Times (May 10). “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.”
Johnson called the settlement a “huge victory for us as well as property owners across the country.” He added: “The next family that finds itself in our situation, facing ominous threats from the EPA, can take heart from knowing that many of these threats will not come to pass. If, like us, you stand up the overreaching bureaucrats, they may very well back down.”
Fear of Setting a Legal Precedent
Why did EPA back down? As EPA made clear from the very beginning, the Johnson case was ultimately about the agency’s jurisdiction to regulate a wetland under the CWA. The Obama EPA, through its proposed “Waters of the United States” (WOTUS) rule is attempting – without congressional authorization – to expand its jurisdiction to bodies of water not envisioned in the CWA. A federal court has stayed implementation of the rule nationwide pending the outcome of the numerous lawsuits challenging the agency’s action. Having barely a leg to stand on in the Wyoming case, EPA may have decided this was the worst possible time to risk losing a precedent-setting wetlands case.