The agricultural world is a buzz lately with the recent progress of a 31 year old battle with the Army Corp of Engineers who 75 years ago decided to turn farmland into wetlands by reintroducing some beaver in the state of Pennsylvania. Of course the farmer is pissed because he wants every ounce of the land he paid for.
(I’m sure the farmer needs water for his fields, but providing that water is someone ELSE’S responsibility. Right?)
Farmer wins round in 31-year wetland legal battle
David has won the latest round against Goliath in Erie County, Pa. It’s only one round, but a key round for farmer Robert Brace in a legal fight with the federal government stretching back 31 years to one of America’s first “swampbuster” cases.
The issue dates back to when Brace’s father drained a farm more than 75 years ago. About the same time, beavers were introduced by Pennsylvania Game Commission into the area. Farmers had to remove the beaver dams to preserve their fields.
When Brace took over the farm in 1977, he fixed the drain field of the 30-acre plot Murphy Tract outside of Waterford, Pa. Then he planted corn instead of grazing it. By continuing to remove beaver dams to allow his fields to drain, the feds claimed Brace violated the Clean Water Act by damaging a “water of the United States.”
Brace argues the allegations were bogus due to a 1988 “prior converted cropland” exclusion granted to wetlands that converted to croplands before Dec. 23, 1985. His changes were made at least a decade before that. Since then, he has sunk a half-million dollars into legal fees defending his position.
The thing is, I feel for this man. 31 years is a long time to go to court for anything, and the army corp is being really dickish and not letting him have access to files or photos of how the land used to be. Obviously wetlands provide a value. But they don’t provide a living for this farmer. If the states wants them that badly they should pay a water-lease annually, don’t you think?
He had asked the Game Commission to remove the beavers or to let him remove them. This had been okayed several times in the 1970s and early 80s. But in 1986, the commission refused to allow it and threatened Brace if he removed the dams himself.
To back his claim that nothing would change if he allowed the fields to drain, Brace wanted the feds to give him copies of pre-1996 federal and state agency aerial photography, satellite imagery, digital data, field logs, vegetation and hydrology data, wetland delineation reports, jurisdictional determination analyses and more. The feds said no.
Perhaps more cont
roversial, Brace’s legal team wanted to be able to admit into evidence the pre-Jan. 14, 2005 federal court testimony provided by EPA’s star witness, Jeffrey Lapp. It directly related to the design, development and implementation of the 1996 consent decree. The government disagreed, contending the information Brace wanted was “not relevant.”
Brace’s legal team also wanted to depose a former Game Commission officer. Again, the government objected.
Wait. Are you telling me at one time the fish and game commission of Pennsylvania actually DENIED a request to trap beaver? Is such a thing even possible? Do you think it was at the request of the Army Corp? I can’t decide which would be more of a surprise – if F&G admitted that beavers are important for water or if ACE did.
Brace possesses a USDA photo from 1983 (before the cutoff) showing the property with established, maintained drainage ditches and planted crops. He has an aerial photo showing the land was farmed as far back as 1939. A “swampbuster” letter from Erie County ASCS dated September 1988 noted: “The County Committee determined that conservation of wetlands began (on Brace’s property) before December 23, 1985.”
Once the Game Commission no longer allowed Brace to remove beaver dams, beaver ponds reclaimed his land. “Even if you’re legal at one point, [beavers] can recapture the property at any time,” Brace says.
Brace’s attorneys contended in their filing: “Genuine disputes as to the material facts of this case remain, which these discovery and testimonies would uncover.”
Now we all know that historically beavers MADE that farmland possible and allowed that land to be rich and farmable in the first place, improving the soil with nutrients, plants and and centuries of wildlife. Beaver shaped and reshaped the place for literally millions of years and it was only filthy bands of greedy trappers that wiped them out in a millisecond that allowed for the dams to fail so that your great-granddaddy walked in and said say hey this looks like a good place to build a farm in the first place.
If the beavers had never been here, you wouldn’t have either.
And if you couldn’t water your fields I’m guessing you wouldn’t be here period.
There should be some recognition that everyone is responsible for helping resupply the water they are going to use, whether it’s rooftop gardens, or not draining the aquifer, or having beaver dams on your land. And at the civic oversight level if you are UNABLE or unwilling to contribute to the community waterbase you should pay a tax, like a water tax. That way a farmer might agree to have a tenth of his land be wetlands to pay for the rest and avoid that fee. And a city that kept beavers in their creek would get a little cost savings as well. And all those greedy almond growers in California could pay their fair share for a change.
We all need the water. We should all help replenish it. And people with more land that use more water should help more.
Brace’s legal team argued that forcing EPA to turn over the requested documents and earlier testimony would give Brace’s legal team information to help resolve longstanding, unaddressed ambiguities — ambiguities leading to new charges that Brace Farms committed new violations between 2012 and 2015.
This is something our new and horrific EPA will be doing a lot of I guess. Losing court battles and allowing gains to be eroded all over the country. I can’t imagine what America will look like when its all over, or even at the moment that it will ever be ‘over’, but at least this farmer and his lawyer are happy.
Next, Brace’s legal team expects to depose several witnesses. That should conclude by the end of January. Then, it’s back to court for another round.
‘Brace’ yourselves.
