By Chris Kick
July 11, 2017
SALEM, Ohio — A Pennsylvania grain and produce farmer is suing the federal government for $8.1 million in damages and lost crop revenue that he says is the result of flooding caused by the government’s drainage management decisions.
Robert Brace, 78, of Erie County, is suing the U.S. Environmental Protection Agency, the U.S. Army Corps of Engineers, and the U.S. Fish and Wildlife Service. He argues that decisions made by those entities cost him more than $8 million that he would have realized from growing the most profitable combination of either cabbages, potatoes or onions.
Brace has been in an ongoing battle with the federal government since 1990, when the U.S. EPA sued him for constructing drainage ditches on one of his farms without a permit. He believed he was justified in doing so, because of a “prior converted cropland” exclusion granted to wetlands converted to croplands prior to Dec. 23, 1985.
The government and Brace settled on a consent decree in 1996, which required him to restore the 32.5 acres in question to a wetland, by removing the existing tile structures and also install a check dam.
But Brace and his attorney, Larry Kogan of The Kogan Law Group in New York City, argue that making those changes led to periodic flooding across other parts of his farm, because the water drainage of adjoining farm tracts was interconnected.
“Mr. Brace is strongly of the opinion that they (government) negatively and wrongly implemented that consent decree” and that the government “knew or should have known” of potential damages,” Kogan said.
Brace and his family farm between 2,000 and 3,000 acres in Pennsylvania’s Erie and Warren counties. The specific farm in question is less than 200 acres, but Kogan said for the past 20 years, about 45 percent of that land was unusable due to flooding.
Brace has a 50-plus year history as a cabbage grower, and said the land in question was highly fertile with good organic matter to grow cabbages. Faced with mounting fines and government scrutiny, he said he had no choice but to sign and follow the consent decree.
Brace said he doesn’t feel like his personal property rights have been respected, nor that he’s been fairly compensated for the loss of production taken from him. He estimates as many as 500,000 farmers could face similar actions from the government, based on how his own situation was handled.
“The government is very deceiving of what they’ve done to the American farmer,” he said.
According to the lawsuit against the government, Brace is seeking damages from “the periodic ongoing surface flooding and/or subsurface eroding” of certain farm tracts, which “has rendered claimant’s entire property(ies) or portions thereof non-farmable,” from 1996 to the present.
In January of 2017, the U.S. Department of Justice filed a motion in federal court in Erie County, claiming Brace has discharged pollutants into waters of the United States, water governed by the Clean Water Act. A second charge involves similar allegations on an adjacent parcel Brace purchased in 2012.
The land in question houses approximately 1,500 feet of Elk Creek in McKean and Waterford townships leading to Lake Erie.
The claims bring millions in penalties against Brace and his companies, Robert Brace Farms and Robert Brace and Sons, Inc. The fees mount daily — nearly $45,000 to the state and more than $100,000 to the federal government per day.