A federal magistrate judge in western Pennsylvania recently issued a ruling that could possibly end 30 years of U.S. EPA wetlands-related litigation against Bob Brace, an Erie, Pa., farmer, and his family. Reopening the case for new discovery and allowing the filing of $8 million in administrative claims against U.S. EPA may finally resolve Brace’s costly legal dispute.

That’s the word from Lawrence Kogan, a principal in the New York-based Kogan Law Group.

In 1990, EPA first filed a Clean Water Act Section 404 lawsuit against Brace for disturbing a wetland on one of his farm tracts. Section 404 prohibits dredging and filling of “Waters of the United States” without a permit.

Congress and the agencies, however, subsequently limited this provision’s impacts on agriculture via the Food Security Act of 1985, according to Kogan. “Prior converted croplands do not qualify as WOTUS and aren’t covered by CWA 404 at all,” he contends. “Normal farming activities are exempt from CWA 404 permitting requirements.”

Latest legal ‘turn’
On Jan. 9, 2017, EPA reopened the 1990 case to enforce an eight-page EPA-drafted consent decree that Brace had executed in 1996. The agency simultaneously initiated a second action alleging new 404 permit violations on another of his farm tracts.

EPA acknowledges that Brace complied with restoring 32.5 acres of designated wetlands on one tract until 2015. But the parties differ on whether he allegedly violated the consent decree after that.

Brace alleges that EPA’s over-enforcement transformed the 32.5 acres into non-farmable wetlands and caused flooding and erosion of 67 to 92 additional acres on three adjoining farm tracts from 1996 to 2016.

The latest judicial order requires EPA to grant Robert Brace’s attorneys six months of new discovery and the opportunity to clarify the true purpose of the disputed consent decree and how its enforcement has impacted Brace’s properties. “I thank the judge for identifying the need to conserve the environment while preserving our constitutionally protected private property rights, including our right to farm to earn a living — and against the tyranny of an ever-expanding administrative state,” says the farmer. “Justice may yet be served.”

Early this month, Brace filed two lawsuits for $8 million administrative claims against EPA, the Corps and U.S. Fish and Wildlife Service under the Federal Tort Claims Act. The family seeks compensation for alleged property damages to his farmlands and for 20 years’ of lost harvest revenues resulting from the flooding and erosion caused by EPA’s “improper, wrongful and/or negligent” over-enforcement.

Source: Kogan Law Group