Andy Johnson EPA Consent Decree

Picture of Andy Johnson's dam

Previous coverage here and here

Andy Johnson created a “stockpond” by building a dam on a creek that is covered under the Clean Water Act. The EPA issued a violation to him for not getting a permit for unauthorized dumping in said creek. The solution outlined in the violation was to work with the agency to remediate the damage. If he didn’t comply, he could face significant fines.

Rather than work with the EPA, Johnson sued, to the accompaniment of press conferences, news storiesCongressional hearings, op-ed pieces by Paul Ryan, and videos featuring a plethora of American flags and small children.

March 22, lawyers with the US Department of Justice and representing Andy Johnson filed a consent decree in court to resolve the court case of Andy Johnson V EPA. The consent decree outlines steps that Johnson must take in order to settle the matter. These are:

  1. Plant dormant willows partially around the pond he created, and ensure they live until September of 2017.
  2. The site must be monitored for invasive species until September of 2017.
  3. Fence the north side of the pond to keep livestock away from the planted areas. The fence must be maintained until September 2017.

That’s it.

I obtained the Administrative Records for this case from the EPA. These are records the EPA maintains for any violation or possible violation, which are then submitted to the courts if the violation results in a court case. In the Administrative Records we discover:

  • That a neighbor warned Johnson he needed a permit to build the dam he was building. He was warned before he started, and again during the work. The same neighbor also asked to be notified when Johnson was informed of the complaint, as the neighbor wanted to notify the Sheriff’s office ahead of time because of other unspecified actions Johnson had taken against the neighbor.
  • That same neighbor, or neighbors, had significant problems with the work, detailed in photos showing potential points of erosion and problems with shared driveways, and silt contamination of surrounding areas.
  • Wyoming gave Johnson a stockpond permit, even though the State knew Johnson was really building a fish pond, “with the understanding that the local official could use it”. Which “local offical”? This isn’t given, but if I lived in that area, I sure would like to know which “local official”.
  • Regardless of the “local official” who would also benefit from the pond, the general feeling in the  local community was that they did not like the pond and felt “if this type of project is allowed to happen“, it would set a precedent that would then be followed by others in the area.
  • Johnson had one single horse, which is sufficient for Wyoming to give a stockpond permit, but the neighbor never saw the horse actually use the “stockpond”.
  • The construction of the simple “stockpond” required a heavy construction plow, and what looked like a whole lot of rock and concrete.
  • The resulting pond easily exceeded the State mandated 20 acre feet as maximum size for a “stockpond”.
  • The “stockpond” is an “ongoing source of irritation between neighbors“. Yeah, we caught that.
  • The County was concerned about the “stockpond”: that it was misrepresented, that it would cause problems with neighbors and an adjacent county road, and that the public wasn’t given an opportunity to comment. “It would appear from the permit that this reservoir has been constructed under the pretense of providing waters to livestock or wildlife although this is an eight (8) acre, residential subdivision.”
  • It’s necessary to maintain the same flow of water for downstream fisheries, even in low-flow times. A dam with a spillway can adversely impact this flow.
  • Though the dam doesn’t look it might blow and take out the roadways (knock on wood) it did puzzle the State engineers as to why it didn’t match the permit request to the State.
  • Andy feels entitled

Well, then. Seems there is much more to this “stockpond” than Mr. Paul Ryan mentioned in his opinion piece, or reflected in the video with all those American flags.

I’m disappointed in the consent decree. Johnson’s actions were an egregious violation of the CWA. I have received documents from the Justice Department in response to a FOIA about the communications leading to this decree, and will post an update.