Property Rights Foundation of America®
Founded 1994

Facing off EPA Wetlands & Watershed Regulations — One Man's 31-Year Legal Battle

Robert H. Brace
Waterford, Pennsylvania
Owner, Robert Brace & Sons, Inc., Produce Farms

Twentieth Annual National Conference on
Private Property Rights
October 22, 2016
The Century House, Latham, N.Y.


Thank you. I appreciate it, Carol.

I'm going to take a couple of minutes to say a few things and then I've got a video twenty-eight minutes long. I think it would take me probably a week to even get started on what navigable waters and Waters of the U.S. are. It's so complicated that you wouldn't believe. It's just here and there. It's unbelievable what's out there. The Waters of the U.S. now as it stands, I mean, everything mine is theirs. When I say "theirs" I mean the federal government. The federal government claims that when the water falls on the top of a mountain it's going to become navigable some time so therefore they control it and they regulate it. There's nothing you and I can do about it until these laws are changed. The Third Circuit Court of Appeals overruled on Judge Mencer on our case they made it so that the EPA has the right to fine anybody they want. I don't care if it's farming, whatever it may be, they can recapture that and find them guilty even though they have every permit that they may need to do it. It's unbelievable but I'm going to show you the video and I'll go on from there, have some questions and answers.

VIDEO PLAYS. Watch video at

Thank you. You hear Waters of the U.S. and hear waters of the state, people think the state owns the water. And this is the controversy I've had. Mountain States, Pacific Legal Foundation, they were on our amicus brief. I think there's around forty different organizations on our brief to the Supreme Court and when the Third Circuit turned that down that's the catastrophe we're in today. We said that when the farmers and the people find out what they'd done it's going to be a catastrophe. That's where we're at. We have a fellow back here from crop insurance.

Anyway, to clarify that a little bit better, right now, after the 2014 farm bill they've taken the power or the authority away from the conservation districts and they've put in all in the Corps of Engineers' hands, which is where it really was before. The Clean Water Act in '72 and '75, it was Senator Muskie in the '77 exemption, that was supposed to allow an exemption for people like ourselves, but now the Third Circuit when they did that eliminated it. It completely eliminated it. So here we are thirty-one years later. The Justice Department is going to assess fines against us of possibly $105 million. They won't listen to nothing. They never would and they don't have to because we, as a nation, have given the EPA all these powers. You know, you or I as citizens, we just can't believe that. It's hard to believe. How can you believe that? Like I've said on there [in the video] and I continue to say it. I mentioned the Soviet Union. We had comments on the Clean Water Act last year. Everybody that I gave the folder to, we tell them what we went through and what it is and what Waters of the U.S. are. When it falls on the mountains, they're water. They said it's going to become navigable someday so therefore it's navigable. Like we're talking.

These are just some of the things that are out there but, you know, I don't know. I don't think people have understood. Finally, I talked to Congressman Thompson this last week. He said if he gets reelected the first thing he's going to do is change this and get rid of that Third Circuit decision. This Third Circuit decision, they're the ones that gave them the power to take 600,000 acres out of the Chesapeake watershed area. They're the ones that gave the EPA the power to impose zero discharge. Those are things that you and I you can't live with zero discharge. Like I said, Nick is not that clean. We could go on here forever but that's just a little bit.

Paul, stand up a second. Tell them a little bit of the deal there. Come on up here. This is the crop insurance man. He's finding out what I've said. Now Jim Stetson, he's the man that worked here before. We didn't have crop insurance this year because I didn't want to sign a [AD-]1026 but Paul knows now that what we're talking about is real. Tell them.

Paul: Well, I didn't expect to be on the stage here today but here we go. As a crop insurance agent, one of the things that I have to do is to work with quite a number of our clients, farmers that are dealing with the NRCS [Natural Resources Conservation Service] and the FSC [Forest Stewardship Council] offices that control crop insurance. But one of the other things they do is require a conservation letter to be on file in order to receive the subsidies which the government uses to pay part of the premiums for the farm insurance. All of that has to do with providing an inexpensive and easy access to an inexpensive supply of food for our country paramount to national security. That's really what it is. But the point is the farmers are arbitrarily, and I mean that literally, put under scrutiny when there's a corner of a field that used to have brush tails or cat tails in it. Now they can declare that tenth of an acre now a wetland. And I've got clients of my own that are fighting tens and thousands of dollars worth of problems for as little an area as a tenth of an acre. In some cases, it's things that they've been able to farm for generations and now they've changed. And it changes at the whim of the conservation office in the government, So, sorry to be put on the spot.

Mr. Brace: That's all right because I just wanted you to know. I've told Jim and Jim was in my office when you did this. I've never done anything wrong. I've proven I've never did anything wrong and now there's a report that I had done there last year that cost us $11,000. But the Justice Department said we don't care what you have or what it says. They put people in prison fifteen years ago. Those are things that are on our web site. Those are the things that are going on today. It would take me a week to even start to explain. But there's information on our web site that is valid. It would take you a month to get through it if you got through it then.

Ms. LaGrasse: Bob, you don't have to validate it because I know these things for a fact. You haven't exaggerated. That's why I had to leave the room. It's so… it's too much to hear this again. But I thank you for coming and I only have one small thing to add. Bob made such an impression upon a man who owns the Farmshine newspaper that he made a special issue about Bob Brace and what the federal government is doing to him. He reprinted it for us, rearranged it, put it all in color and reprinted two months' stories onto three sheets. It's in your kit. And I was thinking, what could you do with this? Well, I don't usually ask this of people, but if you could just take this to somebody that you know in the federal government. Everybody here knows somebody personally in the federal government and just show them what they are doing. I watched this when I was… What year was the Clean Water Act passed?

Mr. Brace: In 1972.

Ms. LaGrasse: 1972. Okay. So I was working for Leonard S. Wegman Company. I remember when the law passed. I said to myself, "What's this for?" Because there was no practical reason you would have that law. The practical reason was in the minds of some people that was hidden. So anyway, you have these three sheets. They really are good things to show and tell. This man who is the editor, this guy, Dieter Krieg, as you can see from his name he is German. He's from East Germany. He lived under the Communist regime and he sees that happening here. And so that's why he did that for you, Bob. You know that.

Mr. Brace: I know that very well. Yeah.

Audience Member: Two quick questions. Number One: It's my understanding you took subsidies from the USDA when you did your tile and ditch work?

Mr. Brace: That's right. I didn't believe and still don't believe in government subsidies. But like I said on the tape, my Dad had that farm. It was on a conservation plat. You know it was $700,000 in debt. So, I said, "Well, I'll go through this." So, that's what happened. But again. Because of an overzealous enforcement person, which by the way, was a conspiracy. They said we were building a golf because the property looked nice. All right? So then again, you've got the Game Commission, the Fish Commission, all the people that I've talked about. They're immune to everything. They don't have to prove nothing. It's up to us and we can't prove it. But those are the things. That's why I am dead against subsidy. Just like the enterprise here. They don't take government money. When you take government money, we're entrapped.

Audience Member: The second question: Can I buy that video?

Mr. Brace: You don't have to buy it. I've got tapes here for you. They, meaning the EPA and the Corps of Engineers. This is what's happened. In the 1972 Clean Water Act the Corps and the EPA were the two final agencies. People didn't know that and haven't known that. But the conservation district, like I tried to explain, in the 1985 Farm Bill they were given the authority to work with me or you. That's why I have a CWPC and all those determinations. December 23, 1985 should have been a nation-wide permit. And it has and it is. Right now the 2014 Farm Bill said, "Hey, you're good to go." But they will not listen to anything you or I say. They don't have to. And they're bound and determined to make sure that these waters are their waters. Yes?

Audience Member: This is also going on out West and in the midlands. You don't even have to be a farmer and they'll find cattails on your property or they'll look for soil erosion into the estuaries or they'll claim even floodplain.

Mr. Brace: Everything. I was on a board for People for the West for three years. You know Stewarts of the Range, Helen Chenoweth has been there. That family has been involved for thirty-seven years. They even won $3.5 million. Supposedly return they supposed to get. It's like the Bundys up there. It's all over property rights.

Audience Member: This is all throughout every federal agency at this point. Even the federal Energy Regulatory Commission which oversees dams which was previously Army Corps of Engineers in fact a lot of them were built by Army Corps of Engineers before the Federal Power Act was enacted 1931. They were all changing the mission statements at the agencies. The agency mission statement is wetlands preservation, endangered species preservation, recreation.

Mr. Brace: That's what I've said destroyed this nation. The Endangered Species Act, the Clean Water Act. I can remember our country owed $800 billion. Now we're at $20 trillion and just like we talked in here today, how can you or I go out and get a permit to do anything? It took them twenty-five years to get a permit to dredge an open harbor. All we have the right to do anymore is sue. And who's got the money to sue?

Audience Member: How about your neighbors? How about the other adjoining, adjacent farms? Are they also subject to these type of harassment?

Mr. Brace: They all are. I was a founder of the Pennsylvania Landowners. That's been twenty-nine years ago. But it's just such an unbelievable situation. That's what Dieter said when he got into this. He said, "No wonder you weren't allowed or couldn't make the point of F1 or F2 [types of hybrid plants] with the recapture provision that everybody is facing today." That's the problem. You can't change from corn to oats legally. You can't go from apple trees to orange trees. Those are all what they can recapture. And it's all because the Third Circuit allowed that to happen. And that's where we're at. When we had the brief that I have in my suitcase there, I mean, Congress never gave the authority to the Corps of Engineers.

Audience Member: Do you have that brief?

Mr. Brace: Yeah, I do. I've got a copy.

Audience Member: One quick question. Have you worked with Senators Lee, Cruz, or Rand Paul. Those are all people who love property rights and they're constitutionalists.

Mr. Brace: Rand Paul said, "Get dirt out of this equation." Dirt shouldn't be a pollutant, but it is. To answer your question. There's very few people we've been able to work with. They just haven't believed what we're trying to say. Just like I'm saying here today, I don't know what to do except to try to keep making a noise. Now I believe, and I hope I'm right, that the story is broke. Dieter broke it. And our goal is right now we'd like to see someone expose this to the Associated Press or whatever before this election. I've talked to our local media just before I left. I'd like to see what our congressman and the people running up there believe what we're talking about. They should be now, whether it's possible or not.

Thank you.

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