Kogan has further unearthed evidence revealing how FWS actively undermined USDA-authorized commenced conversion determinations on farms in Minnesota, North Dakota, and South Dakota at approximately the same time Brace was being harassed. According to Kogan, FWS worked with several environmental groups, including Ducks Unlimited, Natural Resources Defense Fund, and Environmental Defense Fund.
Bonner Cohen Ph. D.
Farmer’s decades-old wetlands nightmare continues in PA
Franz Kafka at the top of his game could not have written a novel about one man’s struggle against a never-ending chain of absurd allegations to match the ordeal one Pennsylvania farmer has suffered through for the last 30 years.
When Robert Brace set out to convert pastureland to cropland on his farm in Erie County, little did he know that this simple, age-old farming practice would lead to decades of litigation that has cost him over a million dollars in fines and legal fees. Brace’s case involves four federal agencies with overlapping jurisdiction, each with its own interpretation of what landowners can and cannot do under the Clean Water Act (CWA). Add to this witches’ brew the machinations of environmental groups working hand in glove with federal regulators to undermine property rights and you have some idea of what Brace has been up against.
Wetlands to Croplands
In the late 1970s, Brace began rehabilitating the drainage system originally put in place by his grandfather. The work took place on a section of the farm that had been used for grazing, and Brace’s plan was to convert the moist pastureland to cropland. By 1986, he was growing crops on the land in question. But in 1987 the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers ordered Brace to cease and desist all discharge activities on his farm. In the eyes of the two federal agencies, Brace’s drainage activities violated the Clean Water Act’s provision protecting “waters of the United States,” i.e., wetlands.
Ratcheting up the pressure on Brace, the U.S. Justice Department (DOJ) in 1990 took the farmer to court, claiming he was draining a wetland. Meanwhile, Congress had enacted the Food Safety Act of 1985, which, among other things, authorized “commenced conversions” of wetlands to farmlands provided the conversion had taken place by December 23, 1985. In administering the Food Safety Act of 1985, the U.S. Department of Agriculture (USDA) specifically authorized commenced conversions, and they were subsequently (in 1990 and 1993) grandfathered retroactively as exclusions from regulation under the CWA.
As it happens, Robert Brace was among a select group of American farmers to secure a commenced conversion determination from USDA. He did so by providing sufficient documentation showing he had both commenced the conversion and committed substantial financial resources toward its completion.
According to evidence uncovered by attorney Lawrence A. Kogan, who now represents Brace, EPA and the Corps acted at the behest of the U.S. Fish & Wildlife Service (FWS) Pennsylvania Field Office. Together, the three agencies set about to undermine USDA’s commenced conversion determination so they could go after Brace for violating the CWA. Kogan has further unearthed evidence revealing how FWS actively undermined USDA-authorized commenced conversion determinations on farms in Minnesota, North Dakota, and South Dakota at approximately the same time Brace was being harassed. According to Kogan, FWS worked with several environmental groups, including Ducks Unlimited, Natural Resources Defense Fund, and Environmental Defense Fund.
In 1993, EPA and the Corps amended the Food Safety Act’s definition of prior converted cropland to their joint “waters of the United States” enforcement powers. Later that year, a district court, citing Brace’s commenced conversion exclusion, found the farmer’s activities to be exempt from regulation. But the Clinton DOJ appealed the decision, and it was reversed. Three years later, Brace and DOJ were back in court, where the farmer again triumphed, only to have the decision overturned by an appeals court.
At this point, 1996, Brace and DOJ entered into a consent decree under which Brace agreed to pay a $10,000 fine and restore the wetland. In return, DOJ agreed to drop the case and forego a $125,000 fine.
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