Guest Commentary

By Lawrence A. Kogan*

An April 20, 2017 WLF Legal Pulse post on the need for a new strategy for federal wetlands regulation presented a long-running enforcement action against a small Erie, Pennsylvania farmer as indicative of the harm wrought by the government’s deeply flawed current approach to “waters of the United States” (WOTUS). Two recent developments—an order by a federal magistrate judge in the US District Court for the Western District of Pennsylvania and the filing of three Federal Tort Claims Act (FTCA) claims by the targeted farmer, Robert Brace—might significantly change the course of this 30-year law-enforcement misadventure.

The US Environmental Protection Agency (EPA) first initiated a lawsuit under § 404 of Clean Water Act (CWA) against Brace in 1990 (United States v. Brace). The suit claimed Brace unlawfully failed to obtain a US Army Corps of Engineers (Army Corps) dredge-and-fill permit for drainage-tilling activities undertaken on government-designated wetlands.  The suit came after Brace, a well-known property rights advocate, had endured three years of being served with EPA, Corps, and US Fish & Wildlife Service (FWS) administrative-violation notices.

In pursuing its action, EPA selectively ignored that Brace’s three-tract drainage-integrated family farm had previously received a “prior converted cropland” (PCC) designation (i.e., conversion from wetlands to farmable dryland) from, and followed a certified-farmland conservation plan approved by, the US Department of Agriculture’s Soil Conservation Service prior to December 23, 1985.  The PCC designation and conservation-plan certification were significant because they completely excluded those lands from being “waters of the United States” under CWA § 404, and allowed Brace to complete his cropland conversion, including the construction and maintenance of drainage tiling certified by his conservation plan, before January 1, 1995.

EPA’s 1990 lawsuit alleged that Brace’s PCC activities failed to meet the “normal farming activities” exemption from CWA § 404 permitting.  Although he had prevailed in federal district court, EPA successfully appealed that ruling to the US Court of Appeals for the Third Circuit, which subsequently held that his PCC activities did not fall under CWA § 404’s normal farming activities exemption.

After the US Supreme Court declined to review the Third Circuit’s decision, Brace executed an 8-page EPA-drafted Consent Decree with the US Department of Justice, which the District Court approved in 1996.  EPA has long taken the position that the Consent Decree required Brace to restore 32.5 acres of one farm tract designated as wetlands to its “prior 1984 condition.”

Brace’s implementation of the Consent Decree not only transformed the 32.5 acres to wetlands (a condition not present in 1984), but it also caused substantial surface flooding and subsurface erosion of 67-92 additional acres of his three contiguous and adjacent farm tracts, thereby rendering them non-farmable from 1996 to 2016.

For several years after implementing EPA’s broad view of the Consent Decree, Brace worked to secure approval to undertake check-dam, ditch, and beaver-dam clearing to arrest the flooding and erosion occurring on his farmlands.  Although the agency initially consented to such activities, EPA subsequently withdrew its consent.

As noted in the previous WLF Legal Pulse post, EPA reopened the 1990 case 11 days prior to President Trump’s inauguration, ostensibly to enforce the Consent Decree.  It also simultaneously initiated a second action against Brace, alleging new CWA § 404 permit violations in an apparent effort to claim other Brace farmlands as WOTUS-adjacent wetlands.

On June 15, 2017, Magistrate Judge Susan Baxter Paradise issued an order requiring EPA to grant Brace’s attorneys six months of new discovery and the opportunity to engage in additional briefing to clarify for the court the true purpose of the “ambiguous and nondescript” Consent Decree, and how its enforcement by EPA has, in fact, impacted all three of his properties.  The order is significant because, although it directly relates to the reopened 1990 case, it also indirectly affects the court’s disposition of the new 2017 case.

More recently, on July 3, Brace filed (and notified the Court of on July 7) administrative claims against EPA, the Army Corps, and FWS under the FTCA for $8 million.  Brace and his family seek compensation for damages to their farmlands and for 20-years’ worth of lost harvest revenues because of the flooding and erosion due to EPA’s “improper, wrongful and/or negligent” over-enforcement of the Consent Decree.

Robert Brace is only one of many small farmers nationwide (especially those in the Great Lakes Region) who have unnecessarily suffered from wetlands-enforcement policies that fail to balance environmental protection and private-property rights.  Those policies have proven economically devastating and potentially compromise U.S. national food security.  Brace’s ongoing battle against the ever-expanding administrative state is thus worth keeping an eye on.

*Mr. Kogan is Managing Principal of The Kogan Law Group, P.C. New York, NY and President of the Princeton, NJ-based nonprofit Institute for Trade, Standards and Sustainable Development. He currently serves as defense counsel representing the Brace family in EPA-re-initiated litigation.