EPA Settles Lawsuit With Fort Bridger Man Who Built Dam; Andy Johnson Faced Massive Fines
The U.S. Environmental Protection Agency settled its dispute with a Uinta County landowner whose stock pond allegedly violated the Clean Water Act with potential $37,500 daily fines.
Landowner Andy Johnson proved his point, his attorney said.
"He was absolutely willing to stand on his property rights and fight it to the end," Cheyenne attorney Karen Budd-Falen said.
"Litigation is long and hard, and hard on a young family," Budd-Falen said. "For that, I think he's glad it's just done particularly since the EPA totally backed down on its claims against him."
Monday, U.S. District Court Judge Skavdahl issued a consent decree which absolves both sides. "Nothing in this Consent Decree shall constitute and admission of wrongdoing or the concession of any fact or question of law by any party."
Johnson agrees to not sue the federal government, and the federal government agrees to not sue him. Johnson also will have to plant willows to mitigate stream erosion.
EPA spokesman Nick Conger declined to comment on the case other than to issue this statement: "This agreement is the result of constructive dialogue between EPA and Mr. Johnson to resolve compliance issues identified by the U.S. Army Corps of Engineers in 2012."
The case started four years ago when Johnson wanted to build a stock pond by damming the Six Mile Creek that runs through eight acres he owns in Fort Bridger. He worked with state officials to determine the best way to build the pond, and he obtained a permit from the Wyoming State Engineer's Office, according to court documents.
In September 2012, the Army Corps of Engineers contacted Johnson because it thought he may be violating the Clean Water Act. Johnson didn't think the act applied to his pond, but he would work with the Corps if necessary, according to court documents.
On Jan. 30, 2014, the EPA issued a compliance order against Johnson, saying he needed to conduct restoration and mitigation activities and hire experts to determine what he needed to do. The EPA also could impose a fine of up to $37,500 a day for every day of noncompliance.
Johnson hired Kagel Environmental LLC of Rigby, Idaho, which had a senior regulatory project manager and enforcement officer for the Army Corps of Engineers. Kagel's final report stated the pond was good for the environment and provided water for livestock, so it was exempt from the Clean Water Act and any related permit.
But the EPA did not withdraw its compliance order nor the potential penalties.
On Aug. 28, 2015, Johnson sued, with his attorneys saying the compliance order violated the Clean Water Act's own rules. They also demanded an injunction to stop the EPA from enforcing the order.
Meanwhile, publicity about the EPA's actions garnered national attention on Fox News, Breitbart, and with Wyoming Sens. Mike Enzi and John Barrasso. (Some of these media reports were wrong when they said the daily fines were $75,000 or $187,500.)
Neither the EPA nor the Corps of Engineers responded in court documents by saying the pond violated the Clean Water Act, but they wanted a settlement rather than a trial.
On March 29, the proposed consent decree was published in the Federal Register and made available for comment until April 28. The federal government received no comments.
Skavdahl issued the final decree Monday.
"This case shows that the federal government absolutely can be wrong in its assessment of what it has jurisdiction over," Budd-Falen said.
"So when the EPA comes in and starts saying 'you have to remove things and we're going to start applying fines on top of you,' you really need to look at the fact situations to see if they're correct or not," she said. "You shouldn't just assume that because it's the federal government that they're always right."