WETLANDS:

Jury rules for EPA in 21-year battle with cranberry farmer

One of U.S. EPA's longest ongoing enforcement matters is about to be wrapped up after a federal jury ruled this week that the Clean Water Act protects 46 acres of wetlands filled in by a Massachusetts cranberry farmer more than two decades ago.

EPA has argued that the site's connections to navigable waterways gave it jurisdiction, but the property owner has spent more than $2 million trying to prove the government is overstepping its authority and that no wetlands ever existed on his land near Plymouth before cranberry bogs were created.

EPA began investigating Charles Johnson, his wife Genelda, their son Francis and their cranberry company around 1990 (Greenwire, Feb. 9). At the request of EPA, the Justice Department brought its case in 1999 to enforce a provision of the Clean Water Act that prohibits discharging dredged and fill material into waters of the United States without first obtaining a permit from the Army Corps of Engineers.

The Johnsons lost an initial U.S. District Court ruling in 2005, but appealed the matter to the 1st U.S. Circuit Court of Appeals in Boston, where it was being considered when the landmark Rapanos v. United States decision was handed down by the Supreme Court in June 2006 (Greenwire, Feb. 7).

In light of the Supreme Court decision and new jurisdictional tests it created, the circuit court decided to vacate the lower court ruling and remanded the Johnson case to U.S. District Court in Massachusetts for more fact finding.

After two weeks of testimony, a federal jury ruled Monday that the Clean Water Act applies to Johnson's wetlands under two different tests established by the Supreme Court.

Charles Johnson, who has seen nine grandchildren born in the time that he's been battling EPA on the case, said today that after this week's ruling, he doesn't have the funds to fight the government any longer and will not appeal the ruling.

"I don't have the resources to do it," he said. "Twenty years later, over $2 million [in legal fees] later, still a half of million dollars in debt, I still had to give in to them."

Johnson, 79, said he remains "disgusted" by the outcome of the case and the millions of dollars he said the government has spent over the small section of his 400-acre farm.

"For the money they spent, they could have bought all our property with half it," he said.

The judge in the case has scheduled another hearing on the case for May 11, and Johnson said he expects to begin working out the details of a final settlement leading up to that hearing.

A Justice Department spokesman declined to comment today on this week's ruling, citing the fact that further proceedings are scheduled.

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