Andrew and Katie Johnson own a small farm near Fort Bridger in southwestern Wyoming where they grow hay and raise horses and cattle. In 2010, Mr. Johnson applied for and received a permit from the Wyoming State Engineer to build a stock pond to water his horses and cattle. From 2010 to 2013, he built a 1,275-foot by 170-foot pond by damming Six Mile Creek, which now flows through his stock pond.
In 2013, the Johnsons were visited by two Army Corps of Engineers compliance officers who took measurements of the stock pond, asserted that the creek was within federal jurisdiction as “waters of the United States,” and said Mr. Johnson was required to apply for a permit before building the pond. The officers did not take water samples, measure the amount of dredged or fill material discharged into Six Mile Creek, or provide Mr. Johnson with any information regarding permit requirements or the application process.
In May of 2013, the EPA sent Mr. Johnson a letter asserting that he may have violated the Clean Water Act (CWA), by discharging dredged and fill material into Six Mile Creek without a Corps of Engineers permit. He met with the Wyoming State Engineer, an attorney, and a regulatory compliance consultant. Shortly thereafter, Mr. Johnson and his attorney participated in a conference call with the State Engineer’s Office, and federal officials who said they would contact Mr. Johnson on the next steps. They never did.
On January 30, 2014, the EPA issued a Compliance Order against Mr. Johnson, demanding that he remove the dam and stock pond he built and engage in costly restoration under a threat of civil and criminal penalties, including fines of at least $37,500 for each day of “non-compliance.” Mr. Johnson argues that his land is not under federal jurisdiction, and even if it were, the stock pond is exempt from federal regulation.
On August 27, 2015, assisted by local counsel in Cheyenne, Wyoming, Mr. Johnson sued the EPA. On September 21, 2015, pursuant to its earlier agreement with Mr. Johnson, MSLF entered the lawsuit. MSLF and Pacific Legal Foundation of Sacramento, California serve as co-counsels to Mr. Johnson.
On May 9, 2016, the Wyoming federal district court issued an order approving the consent decree entered into between the United States and Andy Johnson and the case was dismissed.