United States v. Brace

UNITED STATES OF AMERICA, Plaintiff, v. ROBERT BRACE, et al., Defendants.

Civil Action No. 90-229E

United States District Court, W.D. Pennsylvania

September 24, 2021

MEMORANDUM OPINION ^[1]

Susan Paradise Baxter United States District Judge

I. INTRODUCTION

This litigation has its genesis in a 1990 enforcement action that the United States of America (“United States” or “Government”) brought against Defendants Robert Brace and Robert Brace Farms, Inc. (collectively “Brace” or “Defendants”) for violations of Section 404 of the Clean Water Act. The situs of the original violations is a U-shaped patch of land on Defendants' property, approximately 30 acres in area that has been designated as protected wetlands.

After determining that Brace was liable for engaging in the unpermitted discharge of dredged or fill material into waters of the United States, the United States Court of Appeals for the Third Circuit remanded the case to the district court for a determination of civil penalties. See United States v Brace, 41 F.3d 117 (3d Cir. 1994) (hereafter, “Brace I'). Thereafter, the parties entered into a consent decree (the “Consent Decree” or “Decree”) whereby Brace agreed, among other things, to undertake certain remedial measures in order to restore the previous hydrologic conditions of the wetlands.

The Government contends that, after initially complying with the terms of the Consent Decree, Brace later reversed the remedial measures and converted a portion of the wetlands area to agricultural use, resulting not only in violations of the Consent Decree but also additional violations of the Clean Water Act. This second phase of enforcement litigation ensued.

Presently pending before the Court are the Government's “Renewed Second Motion to Enforce Consent Decree and for Stipulated Penalties, ” ECF No. 285, and the Defendants' “Redrafted Motion to Vacate Consent Decree and to Deny Stipulated Penalties, pursuant to Federal Rules of Civil Procedure 60(b)(5), ” ECF No. 313.^[2] For the reasons that follow, the Government's motion will be granted in part and denied in part, and the Defendants' motion will be denied.

II. BACKGROUND AND HISTORY

A. Regulatory Background

Congress enacted the Clean Water Act (“CWA”), 33 U.S.C. §1251, et seq., to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” Id. §1251(a). To that end, “Section 301(a) of the CWA prohibits the discharge of any pollutant into navigable waters of the United States, unless the discharge is authorized by a permit.” United States v. Brace, 41 F.3d at 122 (citing 33 U.S.C. §§1311(a), 1362(12) (1988)). The term “pollutants” is statutorily defined to include fill material such as “dredged spoil, . . . rock, sand, [and] cellar dirt.” Id. ¶1362(6). “Navigable waters” is broadly defined as “the waters of the United States.” Id. §1362(7). By administrative regulation, “waters of the United States” has been further defined to include “wetlands.” See 33 C.F.R. §328.3(a); 40 C.F.R. §230.3(s).

Section 404 of the CWA authorizes the Secretary of the Army, through the Army Corps of Engineers (the “Corps”), to issue permits “for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” 33 U.S.C. §1344(a). Under Section 309(b) of the CWA, the EPA is authorized to bring civil enforcement actions to enjoin Section 301 violations. 33 U.S.C. §1319(b).

B. Factual and Procedural History

Defendant Robert Brace Farms, Inc. is a Pennsylvania corporation engaged principally in the farming business. Defendant Robert Brace is president of Robert Brace Farms, Inc. and the owner of several contiguous parcels of real property located in Erie County, Pennsylvania, including a tract of land known as the “Murphy Farm.” Within the Murphy Farm is a 30-acre area containing wetlands that are subject to the Clean Water Act. It is this area that was the subject of Defendants' original CWA violations and that is now governed by the terms of the Consent Decree. At issue in this litigation are Defendants' activities within that wetlands area (referred to at times hereafter as the “Consent Decree Area”).

Brace acquired the subject property in 1975, when he purchased over 130 acres of real estate from his parents. See Brace v. United States, 72 Fed.Cl. 337, 339-340 (2006) (hereafter, “Brace II'), aff'd, 250 Fed.Appx. 359 (Fed. Cir. 2007). This property lies along Greenley Road in Waterford Township and is bisected into northern and southern tracts by South Hill Road, also known as “Lane Road.” The northern portion of land, known as “Homestead Farm, ” lies north of Lane Road, south of Greenlee Road, and east of Elk Creek. The southern portion of land, known as “Murphy Farm, ” is situated south of Lane Road, west of Greenlee Road, and east of Sharp Road. In 2012, Brace acquired a third contiguous parcel known as the “Marsh Farm, ” which lies north of Lane Road and west of Elk Creek.

The Consent Decree Area is a U-shaped portion of land, totaling approximately 30 acres, located within the Murphy Farm. See Lutte Decl., ECF No. 226-1; Consent Decree Ex. A, ECF No. 207-2. Within the 30-acre Consent Decree Area are four unnamed tributaries, each of which flows into Elk Creek at points located within the Site. Lutte Decl. ¶6; Brace II, 72 Fed.Cl. at 341; 1993 Adjudication, ECF No. 207-3, at 2, ¶7. Elk Creek, in turn, flows directly into Lake Erie. Lutte Decl. ¶6; Brace II, 72 Fed.Cl. at 341; 1993 Adjudication, ECF No. 207-3, at 2, ¶8.

Brace's family originally acquired the Homestead and Murphy Farms in the 1930s and 1940s. Brace II, 72 Fed.Cl. at 340. The soil is not naturally well suited for farming and, due to the traditional presence of beaver dams, portions of the Murphy Farm have periodically been inundated with water. Id. In 1961, the U.S. Department of Agriculture's Soil Conservation Service (SCS), now known as the Natural Resources Conservation Service (NRCS) developed a “Soil and Water Conservation Plan” for Brace's father, Charles D. Brace. Id. The plan covered both the Homestead and Murphy Farms and envisioned, among other things, a system of tiles and ditches to improve drainage on certain fields in order to make them more suitable for farming. Id. Charles Brace partially implemented this plan but did not complete all of the work. Id. at 341. During this time, the land that is now part of the Consent Decree Area was utilized primarily as pastureland. Id.

As recounted by the U.S. Court of Appeals for the Third Circuit:

Brace purchased the property from his father with the intent of continuing and improving his father's established farming operation. It was Brace's intention to integrate the various portions of the property into an overall operation for an effective and productive farming business. At the time Brace purchased the property containing the [wetlands] site from his father, the site was vegetated with areas of scrub brush, including red brush and briars.

In 1977, Brace sought the advice and assistance of the Agricultural Stabilization and Conservation Service (“ASCS”) as part of his plan to develop an integrated farming operation on the property that includes the site. The ASCS is “an agency of the United States Department of Agriculture which is generally responsible for administering commodity production adjustment and certain conservation programs of the Department.” 7 C.F.R § 12.2(a)(2) (1994). Brace's father had previously worked with the ASCS to prepare a drainage plan relating to the site for the purpose of farming the entire property. At the time he purchased the property from his father, Brace obtained and utilized the soil and conservation plans that had been prepared for his father by the ASCS. The drainage system impacts the ability to produce crops on all parts of Brace's property.

The existing drainage system was in poor condition and not yet complete at the time of Brace's acquisition. Brace began cleaning the system in 1976 in order to improve upon the existing system and make it effective for agricultural development. In the following years, Brace maintained and improved the drainage system pursuant to the plan recommended by the ASCS. From 1977 to 1985 the ASCS periodically visited the site and provided technical assistance and costsharing arrangements to Brace.

As of 1977, the essential portions of Brace's improvements to the existing drainage system were intact and operating. Brace's work in improving upon the interconnected drainage system progressed continuously from 1977 to 1987, as time, funds and equipment were available. If the necessary funds had been available to him in 1977, Brace would have expedited his farming plans and completed the project at that time. As a result of Brace's efforts, by the end of 1979 the site was dry, with the exception of times of excessive rainfall.

Brace cleared, mulched, churned, levelled, and drained the formerly wooded and vegetated site from 1985 through 1987. In 1986 and 1987, Brace paid for excavation in the site and the burying of plastic tubing or “drainage tile” in an effort to drain the site. Throughout the 1980's, Brace used appropriate equipment to remove unconsolidated soil, pebbles, silt, and growth which were impeding water flow. Farmers in the area typically engaged in such practices.

As a result of Brace's levelling, spreading, and tiling, Brace began to grow crops on the site in 1986 and 1987. Brace did not have a permit issued pursuant to Section 404 of the CWA authorizing his activities.

The United States became aware of Brace's activities in 1987. During 1987 and 1988, the United States issued three orders to Brace, directing him, inter alia, to refrain from further disturbing the site, so that it could naturally

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