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By Tripp Baltz
May 9 — A Wyoming rancher agreed to plant willow trees around a stock pond to settle a dispute with the Environmental Protection Agency that began when the agency ordered him to remove the pond and threatened him with fines.
The proposed consent decree filed May 9 in the U.S. District Court for the District of Wyoming settles a complaint filed by Andy Johnson against the EPA after the agency issued a finding of violation and administrative order for compliance under the Clean Water Act for a dam and pond Johnson built on his ranch in Uinta County, Wyo. Johnson's attorney,
Jonathan Wood of the Pacific Legal Foundation, told Bloomberg BNA May 9 the settlement is a “win for the Johnson family and a win for the environment.”
Johnson won because he sued the EPA, Wood said. The consent decree is a “huge step back from the out-of-control threats in EPA's original order,” he said. The resolution of the case shows that “unbelievable threats and the potential for financial ruin are something you can stand up to.”
After obtaining a state permit, Johnson built the stock pond on his property in 2013 to provide safer, more reliable access to water for his small herd, Wood said. The pond created wetlands, habitat for fish and wildlife, and cleans the water for his small herd.
The EPA issued an order saying the pond violated the Clean Water Act, accused Johnson of failing to obtain the required federal permit, ordered him to “rip out the pond at a cost of tens of thousands of dollars,” and “threatened him with fines of $37,500 a day if he did not comply,” Wood said. “Now, he gets to keep his pond, he doesn't have to pay a dime in penalties, and he has to plant willows around the pond and temporarily fence off part of it from livestock.”
That element of the settlement was ironic, Wood said. The EPA had argued that the pond wasn't a stock pond, but their chief concern was preventing livestock from reaching it. Stock ponds are expressly exempted from the Clean Water Act, a point Johnson made in his complaint challenging the EPA order. With the settlement, the EPA has agreed to treat the pond as a stock pond, in exchange for Johnson making the environmental improvements.
The EPA said Johnson needed to get a federal Clean Water Act permit.
Johnson constructed a dam within the main channel of Six Mile Creek “without adhering to a well-known and well-established Clean Water Act permitting process administered by the U.S. Army Corps of Engineers and EPA,” the EPA told Bloomberg BNA in an e-mail. “These permits are intended to protect our nation’s surface water resources, as well as downstream water users from activities that can divert water flow, pollute waterways, and permanently alter aquatic habitat.”
In a statement issued by the Pacific Legal Foundation, Johnson said the settlement was a victory for private property owners.
“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,” he said. “If, like us, you stand up to the overreaching bureaucrats, they may very well back down.”
Ordinarily private landowners cannot afford to file suit against the EPA, Wood said. Pacific Legal Foundation agreed to take the case on a pro bono basis.
It also worked with local counsel Karen Budd-Falen of the Budd-Falen Law Offices LLC in Cheyenne, Wyo.; Daniel Frank of the Frank Law Office PC in Cheyenne; and Maegan L. Woita of the Mountain States Legal Foundation in Lakewood, Colo.
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The consent decree is at http://src.bna.com/eOa.
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