I am a proud former Army member. I understand that it has a vital mission to protect the US, protect our interests abroad and partner with allies to accomplish the same. What I never really considered until I donned the uniform is that US Army engineers have responsibility for some internal issues such as wetland management and certain bodies of water. Specifically, the US Army Corps of Engineers has jurisdiction over some, but not all waters and some, but not all land improvement techniques. Confused yet, you should be.
What makes it even more confusing is that each engineering office has different standards in application. Tellingly, in Iowa, the Rock Island Arsenal Corps of Engineers has a much different view of certain activities that the western Corps of Engineers’ offices have for the same practice.
This is not good for those who are subject to regulation, which can include developers, farmers and sometimes landowners with ambitious pond projects.
Take for example, what kind of mess can happen when the Corps gets involved from this California case. I have referenced it in prior articles but here is a deeper dive.
A California farmer two federal agencies within the U.S. Department of Agriculture (USDA) (i.e. the NRCS and the FSA). That makes sense to most farm operators, they are frequently even co located in the same building. He checked with those agencies and their records to make sure that his future use of the land, wheat farming was suitable. It turns out that the prior landowner had also raised wheat. No problems. It didn’t occur to him to check in with a branch of the military before farming.
Army representative apparently according to the government randomly saw the wheat farm and complained to other members of the government that this field needed and didn’t have a Dredge and fill permit. For using a moldboard plow. Because, for one or two months in a year, the land small ponds that lasted about 60 days. These are called Vernal pools. The Corps claimed they have jurisdiction over them, but they do not. Congress specifically said normal farming operations are exempt from enforcing clean water act rules, which is where the Corps thought they had the power to control farming operations. It during out that a fourth government agency, the EPA, would have been the enforcer but they had not gotten involved.
That was 8 years ago. After 8 years of valiant defense with highly skilled counsel, the financial drain was telling, and the farmer had to settle. He paid $350,000 in fines and gave restrictive easements on the ground he kept. The conservative estimate of what he gave up in value is $1.2 million dollars.
His name is Jack LaPlant. If you seek other articles about him, the fifth government agency (the Department of Justice) is releasing statements painting Jack as an ag developer who wants to destroy the environment. Notice, the articles do not talk about houses, golf courses, helicopter pads, exotic species (not one tiger even), moldboard plowing however was. The DOJ called moldboard plows Earth moving equipment. Those sound a lot like bulldozers and not much like John Deere’s break through device.
As if that wasn’ t enough, the foundation that provided the legal defense noted it its recent article:
“Numerous Army staff testified under oath that they have no clear rule that tells you when they think you need a permit or not, and they won’t even talk to you until you do an expensive and time-consuming hydrologic study of the property and disclose everything that has been done on the property going back years.”
That didn’t stop the enforcement.
When I write demand letters or what to be a confrontational, I sign letters Govern yourself accordingly or fail not at your peril… both seem appropriate to close this article with if I was working for the government.
