WETLANDS

EPA's 22-year battle with cranberry farmer ends, but questions and anger linger

Though U.S. EPA has prevailed in one of its longest-running enforcement matters, there's some debate over whether the payoff was worth all the effort.

Under a consent decree released this month and currently available for public comment, a Massachusetts cranberry farmer will have to restore 26 acres of wetlands and pay a fine of $75,000 to resolve charges that he violated the Clean Water Act when he built two sections of his farm in the late 1970s and '80s.

It took 22 years to reach that decision, and one legal and environmental expert involved in the proceedings estimates that the government spent well over $10 million to pursue the matter.

In the end, the case came down to whether the government has jurisdiction over streams on the farm because of their connections to navigable waterways of the United States (Greenwire, Feb. 9, 2011).

The farmer, 80-year-old Charles Johnson, said in an interview last week that if he had the money, he would keep fighting. But after spending about $2.5 million out of his own pocket and with $170,000 in unpaid legal bills, the stubborn Korean War veteran said he simply could not afford to go on. As it is, he expects his children and grandchildren -- nine of whom have been born in the time that he has been fighting EPA over his farm -- will continue to deal with the issue after he is gone. EPA plans to continue to monitor the property for years to come.

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But while his money has run out, his anger continues to burn.

"People who know me say, 'Jesus, how the hell did you put up with it for 22 years, and why don't you just forget it now that it's over?'" said Johnson, who, along with his son, works cranberry fields that his father once oversaw as a farm foreman.

"I certainly would like to keep this episode in people's minds to make them aware of the deficiencies that exist in our government and in these enforcement agencies," he added.

Johnson's case has long been held up as an example of EPA abusing its authority. In 2001, he testified about his experience before the House Transportation and Infrastructure Subcommittee on Water Resources and Environment.

But Johnson said that in the decade since his testimony, on Capitol Hill he has realized the problem isn't limited to EPA.

"It certainly illustrates to me that Congress, who are supposed to be the people in control of government, has lost control of the government and just cares about getting re-elected," he said.

Test case

Last week, former EPA Administrator Bill Ruckelshaus, who left the agency about six years before it brought the case against Johnson, was sympathetic to the strain that the case has placed on the cranberry farmer and his family.

He also laid a large share of the blame at the feet of Congress.

While he isn't versed on the details of the Jonson case, Ruckelshaus said the question of what constitutes a navigable waterway under the Clean Water Act represents a classic problem that Congress creates when it writes vague laws and expects regulatory agencies to fill in the details.

"When laws are ambiguous or, at least, not clear, you often find one lawsuit being this sort of focal point for how to clarify what, for instance, the definition of navigable waterway would be. And the people caught up in it are often a very minor part of the overall concern of the agency," Ruckelshaus said.

EPA began investigating Johnson, his wife Genelda, their son Francis and their cranberry company around 1990 after a neighbor complained that an expansion project limited access to a nearby stream.

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 dredge-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.

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

The case finally went to trial again last year, and a federal jury eventually ruled that the Clean Water Act applied to Johnson's wetlands under two different tests established by the Supreme Court.

And while he is sympathetic to the strain placed on Johnson, Ruckelshaus said he also understands what EPA was trying to do in the Johnson case.

"How does the government establish its authority if the statute isn't clear about what their jurisdiction is?" he said. "They establish it by asserting jurisdiction in a case like this, and the resulting legal snarl can last for years."

It may seem unfair to the individual who becomes the test case, but "the government, on the other hand, will say, 'If we don't assert jurisdiction in this case, there are thousands of other cases around the country where the same circumstances exists, and we're essentially admitting we have no authority,'" he said.

Ruckelshaus said the only way to fix the problem permanently is for Congress to clarify the definition of navigable waterway.

"And it's not just navigable water; it's all kinds of issues like this that arise under statutes where the definition is unclear or whether the power of the federal government is not as clear as it ought to be," the former administrator said.

'They had it out for Charlie'

But Gary Baise, who served as EPA's first chief of staff under Ruckelshaus before going to the Department of Justice and then into private practice in the District of Columbia, said last week that he disagreed with his friend and former boss's assessment of the Johnson case.

"Congress seldom writes you a very prescriptive statute," said Baise, who learned of the case a decade ago and signed on to defend Johnson against the agency that he previously helped lead.

Baise stepped down as Johnson's lead attorney in 2004 in part because it was costing Johnson too much, but he continues to be interested in the case.

When Congress is not explicit, it's the job of the enforcing agencies to use their good judgement, Baise said.

"That's what regulators do," Baise said.

He said that the more than two decades spent in pursuit of Johnson represents a special kind of abuse of legal power.

"They had it out for Charlie from the beginning," he said. "Charlie is a gruff old guy, and they don't accept anyone who stands up to them, so they will punish you. They punished Charlie and his family."

It was Baise who estimated that EPA has spent more than $10 million pursuing Johnson over the years. He said that during the court proceedings he was involved in, he found that just one expert government witness cost several million dollars.

EPA spokesman Dave Deegan today said he did not know of any official cost estimates kept by EPA or the Justice Department, but he said the cost is far lower than the estimates cited by Baise.

"EPA is pleased that this case has finally reached a settlement," Deegan said in an email. "This resolution underscores that anytime a property owner is considering altering wetlands, they must seek and obtain a permit from the Army Corps of Engineers."

But Johnson said the fines and the restoration of a relatively tiny section of his 400-acre farm will do little to provide any sort of greater benefit to the country.

"Not to belittle $75,000, but that's probably the least of the consequences," Johnson said. "Obviously, the waste of our lives and time and, as important, the total waste of taxpayer [money] ... is ludicrous."

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