The Swamp Thing

By Michael Fumento

Investor’s Business Daily, November 5, 1993
Copyright 1993 by Investor’s Business Daily

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While it’s not unusual for Congress to get swamped during a legislative session, this time it’s more literal.

That’s because it’s considering a presidential proposal and three different sets of legislation (with a fourth on the way) on how to best protect the nation’s wetlands — and just as importantly, some say, those who own them.

Everyone seems to that something has to be done to codify wetlands legislation. Currently it is a morass of judicial and administrative decisions that leaves those potentially affected literally unsure of the ground on which they stand.

"We only ask that Congress pass legislation that defines this," said Margaret Ann Reigle, president of the Fairness to Land Owners Committee in Cambridge, Maryland. "Even though we may not like what they come up with, it’s better than the bureaucrats doing it."

Reigle’s group, which she organized in 1990, now has some 36,000 members in 40 states. She says that almost 90 percent of the problems of her members have to do with wetlands. That’s probably because about 80% of the wetlands in the lower 48 states are private property.

Current wetlands policy grew out of 1965 legislation to protect navigable waterways from pollution. Through both court decisions and EPA promulgations, this gradually widened to include the discharge of pollutants into waters that eventually flowed into navigable waterways, then to waters that didn’t necessarily flow at all. At the same time, the definition of pollution became widened to include pure fill dirt.

"My client, John Pozgai, was sentenced to three years in jail for putting clean fill on land that had a tiny stream hundreds of yards away," said Paul Kamenar, executive legal director of the Washington Legal Foundation in Washington, D.C. "That’s how crazy this has become."

"It was one sentence in CWA that turned into thousands of pages," said Steven Kearney, an aide to Rep. Jimmy Hayes, D-LA, who has introduced wetlands legislation. "We have to authorize this regulation in some way that involves people and not just regulatory agencies coming up with their own definitions and playing both judge and jury."

Nobody seems to be arguing that wetlands are fast disappearing; indeed, they are not. Of the original approximately 391 million acres acres of wetlands in this country (about 17% of the land as a whole), more than half have been converted since the nation’s founding, according to the Fish and Wildlife Service of the Department of Interior.

But from the 1950s to the mid-1970s, wetlands conversion in the lower 48 states slowed to a rate of 458,000 acres or 715 square miles per year. For the most recent years, Fish and Wildlife official figures say it appears to have slowed to about 290,00 acres or 453 square miles per year, although a tentative report from that agency would indicate that it is even less.

Put another way, the nation lost about 1% of its wetlands from 1975 to 1985. Since over half of that was converted to farmland and such conversions have been slowed greatly since federal legislation in 1985 took away the economic incentives, the rate is certainly even less now.

Most of the conversion that did occur, far from being senseless destruction of nature’s endowments, helped the nation become both financially strong and physically healthy. Mosquito- borne diseases such as malaria, yellow fever, and encephalitis killed many Americans until many of the wetlands were drained.

The Ballona Wetlands in Los Angeles are between Marina Del Rey and Los Angeles International Airport.

Wetlands are often also coastal lands and therefore particularly valuable for building homes, harbors, and marinas.

This explains much of why California has lost over 91% of its wetlands, more than any other state.

Two Californians, Sen. Barbara Boxer and Rep. Don Edwards, both Democrats, have introduced identical wetlands legislation. The bills are generally regarded as more restrictive than the other proposals, including that of the Clinton administration. Critics say they would make new wetlands development also impossible.

An Edwards aide who didn’t wish to be identified explained, "Wetlands protection is a national issue and because California has lost more than any other state, members from California are in the best position to say that since we did screw up, we want to prevent others from screwing up, as well."

But some find the Californians’ legislation irritating in that their state got the economic benefit of converting 91% of their wetlands but that now they are intent on making other states pay the price of being the nation’s wetlands repositories.

Even now, the largest remaining swatch of wetlands in Los Angeles is about to plowed under for condominiums and stores.

"It’s terribly ironic and a little bit hypocritical," said Lee Forsgren, an aide to the ranking Republican on the House Natural Resources Committee, Don Young. Young is Alaska’s representative in the House.

"It’s even more atrocious when you consider that the federal government has locked up over 80 million acres" in Alaska, said Forsgren. "We could never reach the level California already has. For us to be subjected to de facto federal land use planning by federal bureaucrats because California has not done a good job is fundamentally unfair."

Forsgren says that the value of wetlands is not an objective or abstract thing, but rather depends on how much is in a given area. Thus, he says, while they are very valuable and must be protected in wetlands-scarce California, they are far less so in wetlands-rich Alaska. "Most of our permits are for people trying to build driveways or garages and the worst that happens is the ducks move 30 feet," he said.

The Hayes bill calls for turning over much of the regulatory wetlands power to the states. "To me," said Kearney, "it’s a question of do you want people who are there on the spot taking care of wetlands or do you want people in the (Washington, D.C. area) beltway writing regulations who seem to believe that all wetlands are equal? We’ve never had any kind of input from people into this process."

Michigan is the only state to have assumed full authority, subject to EPA veto, for issuing wetland permits.

A recent EPA study found that state assumption has failed in large part for lack of funding and flexibility in letting states design their own program.

Legislation introduced by Sen. Max Baucus, D-Mont., and John Chafee, R-RI, would give some authority to the states, though not nearly so much as the Hayes bill. The Edwards and Boxer bills would simply retain the current law in this area.q

Part of the problem with current wetlands policy, according to critics, is that the definition of wetlands is too expansive.

It goes well beyond the traditional marshes and bogs, to encompass any land with "hydric soils" or "hydrophytic vegetation." That is land showing evidence of periodic saturation of or containing plants that are characteristic of wetlands. It also includes in the definition any land with water as close as 18 inches below the ground for 21 consecutive growing days of the year.

About half of Alaska is classified as wetlands, since the warm season is so short that the permafrost doesn’t have a chance to dry up and seep very far into the soil.

Speaking of U.S. wetlands in generaly, Forsgren said, "They always show you in pictures nice marshes but most of what we’re talking about any self-respecting duck would refuse to land on. I could show you pictures of some with cactus growing on them."

This is particularly troubling, says Reigle, because often it is impossible to tell whether one’s land falls under this category just by looking. Instead, land owners must hire expensive consultants to drill for water and soil samples.

"My theory on classification is that most of the burdens on the moms and pops are over plots, things you would never in wildest dreams classify as wetlands."

Reigle’s main concern, the "taking" of private land by preventing owners from using it as they wish, is addressed in neither the Edwards or Boxer bills. Edwards’ aide says that was no oversight. "Mr. Edwards has said consistently that the whole issue of takings is a matter that should be left to the courts," she said.

But both Kamenar and Reigle say it’s not that simple, because many property owners denied development permits don’t have the money to battle it out in the courts.

To deal with this, the Hayes bill divides wetlands into three categories depending on their value. Those found to be most valuable would be more strictly regulated than under current law, and would be considered a taking which must be financially compensated. Those in the middle category would be regulated similarly to the way all wetlands are currently, albeit with the other improvements in his bill.

The third category, however, while being deemed technically a wetland, would be that which serves no real wetland functions and would be virtually unregulated. People would not need to get permits to develop it.

"I think it frees up the undue burden on little guy and small parcels," said Reigle of the categorization. "We had people down here (in the Chesapeake Bay area) with less than a quarter of an acre and one-tenth acre of disturbance and were put through an enormous expenditure of time and money."

Kamenar, nonetheless, thinks that the best protection against indiscriminate government takings is to make sure that each time the government lowers the value of property through regulatory schemes it compensates the landowner.

Edwards’s aide disagrees.

"It would be great if we had money and the matter were as simple as it sounds, then sure if I can’t do anything I want on my property then I would want to be compensated. (But) it’s the responsiblity of the legislature to protect public health and safety."

Kamenar, however, said "a lot of this regulation is not really in the interest of public health and safety, that’s just a fig leaf. It’s really in the aesthetic category of regulation."

Further, he said, "Keep in mind that at the federal level Congress doesn’t have the constitutional authority to regulate on public health and safety, rather it derives its authority from the commerce clause of the Constitution. Only at the state level is the authority to regulate for health and safety. Thus, if that’s the excuse for the federal government taking land, it’s not constitutionally based."

Also, he said, "If indeed it’s necessary for public health and safety, it’s an admission that it’s being done for the benefit of the public and should be paid for by the public.

"Indeed," he said, "the federal government does have a budget to acquire wetlands and are doing it with tax dollars. They’re simply saying they don’t have enough money so we’ll use the Corps of Engineers (the agency which, along with the EPA has the most responsibility in administering wetlands regulations) to do it on the cheap."

But why does the federal government seem so eager to apply such a broad definition to wetlands and to thus take authority over them?

"The bottom line," said Kamenar, "is that whenever you deal with the government (bureaucracy), their whole reason for existance and their mindset is to increase their jurisdiction and power over the rights of individuals. Not only do they think that state does it better but that the state should be doing it rather than the individual.

"What’s also goading the government is the environmental movement," said Kamenar, "which also has disdain for private property rights. Together they have become an almost unbeatable power house against the solitary property owner."


Read Michael Fumento’s additional work on environmentalism and on the government.