Pennsylvania farmer Robert Brace was sued by the federal government in 1987 for repairs he had made to an existing drainage system on his farm. The Third Circuit Court of Appeals held in 1994 that Brace’s repair activities did not constitute “normal agricultural activity” and were therefore subject to Clean Water Act regulation. After thirty years of battling the government, Brace has now filed an $8 million administrative action against the Environmental Protection Agency, the Army Corps of Engineers, and the United States Fish and Wildlife Service requesting financial compensation for improper regulatory enforcement that has resulted in millions of dollars of lost profits. Mr. Brace should prevail in this lawsuit because he was falsely accused of violating federal regulations with which he was in compliance or exempt from. Furthermore, to ensure that other farmers are not subjected to such a fate, structural changes must be made to the United States’ environmental and agricultural regulatory systems. These changes include redefining “normal farming activities” under the Clean Water Act to reflect a more realistic understanding of agriculture, reinforcing the original definition of Prior Converted Cropland to definitively exclude croplands converted prior to 1985 from Clean Water Act jurisdiction, and definitively recognizing the Commenced Conversion exemptions from Clean Water Act regulation given to farmers like Robert Brace. The Robert Brace case is a poignant reminder that failing to restrain regulatory overreach seriously threatens America’s farmers. Agricultural and environmental interests must be balanced by policy-makers and citizens alike, but it cannot be through the means of an ever-expanding administrative state. The story of Robert Brace shows that the shifting sands of the administrative state can pose a grave threat to individual freedoms if allowed to roam unchecked.
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Robert Brace and the Shifting Sands of the Administrative State,
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