Like his father and grandfather, Bob Brace is a farmer, working the land his family bought at the turn of the century in northwestern Pennsylvania.
That, however, was before seven federal, state and local agencies descended on his farm, accused him of destroying wetlands and threatened him with fines as high as $50,000 a day.
His crime? Brace was cleaning out beaver dams that clogged the streams on the land and made it too water-logged for crops. Officials said he was destroying wetlands, in violation of federal environmental law.
Brace’s story is a regulatory nightmare that shows how people with the best intentions can be all but destroyed by complicated government regulations and overzealous bureaucrats.
And it’s providing ammunition for House Republicans, who are pushing legislation that would give citizens and businesses more defenses when facing accusations that they violated federal regulations.
In Brace’s case, various state and federal agencies gave him permission to clear out the dams and overhaul his farm’s drainage system before he even started the work. But, once under way, other agencies came in and disagreed.
“And now,” Brace told a congressional subcommittee last week, “I am faced with the loss of my farm.”
The House bill would have prevented that because it would let people or businesses avoid punishment if they can show they didn’t know about the regulation or believed they were complying with it.
It’s similar to a law enacted in March to help small businesses navigate the often rocky shoals of regulatory compliance. That law encourages the government to help small businesses follow federal rules by requiring agencies to answer questions and waive penalties in some cases.
The bill now under consideration would cover all private citizens and businesses subject to federal regulations, from environmental laws to workplace safety requirements. Business managers say it’s a long time in coming.
But the Justice Department and other federal officials and environmental groups say the bill goes too far. Not only will it make it harder for the government to enforce the law uniformly, they say, it also will hinder prosecution of violations of any federal regulation–from environmental protection and workplace safety to health-care fraud.
On its face, they say, the bill appears fair. But, they say, it would have harmful and dangerous consequences. Among other things, it would make criminal enforcement depend on what the defendant believed about the law.
“To use a baseball analogy, this is like ordering umpires to stop calling balls and strikes, and instead let the batter make the call,” James F. Simon, U.S. deputy assistant attorney general, told the Subcommittee on Commercial and Administrative Law last week.
Instead, Simon said, Congress should support efforts to simplify regulations and improve coordination with state regulators.
But House Republicans say their bill is moderate, crafted in response to concerns federal officials had with a similar bill the Senate approved 80-0 last year.
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Like the Senate bill, the House legislation requires that people have fair warning of a regulation before they are penalized and some notice that they’re violating the law.
The two bills also would allow people to avoid punishment if they can show they believed in good faith that they were complying with the rule or were exempt from it. The Clinton administration takes exception to that provision.
The House bill differs from the Senate version in several ways. For one thing, it prevents a federal agency from imposing a sanction only if the defendant determined he was following the law before he committed the violation. And the bill isn’t retroactive; the Senate bill is.
That means it would come too late for Robert McMackin, who also testified before the subcommittee “so other citizens will not have to go through the near-devastation that we faced.”
McMackin and his wife unknowingly built their retirement home in a federally regulated wetland in Pennsylvania. Four years after they moved in–and after they’d gotten the necessary permits from local authorities–they received a very stern, very formal letter out of the blue from the U.S. Army Corps of Engineers.
The letter told them they could keep the house, but that they had to excavate the area around it and buy more land to create another wetland.
“Even despite our good faith efforts to reasonably develop our property and to be good stewards of the land, we somehow violated the law because we had no notice or warning of what the law requires,” McMackin told the subcommittee. “After three years of stress and expense, the problem is still not resolved.”
The McMackins have yet to get final approval from the corps for the wetland they were forced to build. If found unsatisfactory, they could be forced to pay thousands of dollars in fines.