JULY 3, 1995 GREEN SPRING ENTERPRISES, INC., Senator ORRIN G. HATCH, Chairman, Senate Judiciary Committee, Washington DC. DEAR SENATOR HATCH: I was privileged to have attended the hearing of the U. S. Senate Judiciary Committee on Monday, July 3, 1995, at the Utah State Capital Building. This meeting, wherein two panels submitted public testimony, was most uplifting to me, and I can endorse from personal knowledge the statements given by Mr. Larry Gardner, and that of Mr. Ronald W. Thompson, of the Washington County Water Conservancy District. Based on an invitation from you indicating that written statements could be received within 10 days of the July 3 hearing, this further statement is hereby forwarded. My name is Robert B. Barker. My permanent residence is in Salt Lake City, Utah. I am associated with two companies, one named Green Spring Enterprises, Inc. that is a closely held family sub-chapter S corporation, and the other being Red Lands Co. L.C., the successor to an investing group of five individuals who purchased land in Washington County, Utah starting in 1964. Shortly after 1964, our land holdings were annexed to Washington City. At that time, our land constituted approximately 375 acres. We have been active since that time in endeavoring to enhance the community of Washington City and establish tourist and destination facilities adjacent to the off-ramp #10 of the I-15 interstate highway. During this approximately 30 years, we have made some substantial contributions to the welfare of the community and the surrounding environs as it has grown from a small town of 411 people to a community of about 4,200 people. The testimony given at the July 3 meeting indicated the ways in which overzealous representatives of the federal government have destroyed property values or have effectively taken from private individuals the rights pertaining to their property without appropriate compensation. We have been involved in several projects which further illustrate the manner in which the Clean Water Act and the Endangered Species Act have been administered in such a way as to either jeopardize or destroy the usage of private land. It is my desire to place on the record the history of the Green Spring Golf Course, a municipal golf course now owned by Washington City in the state of Utah. During the 1980's, in endeavoring to enhance the attractability of Washington City, I found myself in the role of coordinator of an unofficial consortium of land owners and civic entities. The consortium was organized for the purpose of combining various tracts of land in such a way as to cause the creation of a municipal golf course using available water rights and utilizing a base of 40 acres of land which had been declared surplus by the Bureau of Land Management as a result of the demise of the "Dixie Project", a long-planned, but eventually abandoned water storage dam proposed by the Department of the Interior. The net result of the consortium's efforts was to contribute, in addition to the 40 acres of the BLM land, an additional 116 acres of private land together with a somewhat complicated land trade involving Washington City and the state of Utah. The private and city land involved in the consortium, which then consisted of Deseret Mutual Insurance Company; Red Lands Co., and the City of Washington in Utah, was valued by appraisal at approximately $1,747,000. The contribution from our own company amounted to $553,634. Washington City obtained financing by a municipal bond of $4.3 million obtainable on the strength of the value of the unencumbered land which was donated to Washington City. The process of feasibility studies, financing, planning and construction activity occurred during a period from late 1987 through November 1989, at which time the course was completed. During this period of time, there were many consultations with state, federal and private authorities recognized for their experience in projects of this type. Information obtained during that period included feasibility studies that stipulated there was no wetlands in this project. However, in spite of this experience, on May 12, 1989, with all of the construction having been completed, the bond in place and sold, and all of the course having been seeded except for the last two or three fairways, an agent of the Corps of Engineers appeared unexpectedly on the site, demanded the cessation of the project and declared that part of this area was wetlands. This declaration was accompanied with the threat of an immediately invocable fine of $25,000 a day if any work continued, which was later raised to $50,000 per day. Because of the vested interests we then had in the project, and as a result of a natural inclination resulting from many years of professional architectural and engineering service, including World War II history as a member of the Corps of Engi. neers, I found myself cast in a role of responder to the obvious crisis in an endeavor to preserve the integrity of the project so firmly committed. This resulted in obtaining application blanks from the C.O.E. to see if this could be approved, even retroactively under the existing provisions of the Clean Water Act and the project could be completed as envisioned. Having relied all of my professional life on the integrity of federal, state and local administrative agencies in the interpretation of codes and methods of conduct in the building process, I was greatly discomfited to find that the field representatives of the C.O.E. recommended to the city administration that they not make an application, but instead work out negotiations for mitigating the damage which the C.O.E. apparently regarded as an attempt at purposeful evasion of the law. From that period on, discussions were held under the threat of the imposition of huge fines and arbitrary definitions that persisted through the entire negotiating process. Before the project was completed, all involved became "experts" upon wetlands law and departmental rulings and interpretations of both the C.O.E. and the EPA. In retrospect it became apparent that the base determination by the federal agencies was that the city was guilty of gross malfeasance and the only determination that ultimately needed to be made was whether the project was allowed to proceed at all, and if so, what would be the mitigation and the extent of the penalties required. The education process thus required showed that upon careful review at each possible fork in the road the severest decisions seemed to be the choice. For example it now appears that an even handed review of the project as initially planned could clearly have resulted in eligibility for the granting of approval under the National Permit requirements without any other subsequent review. By the same token, the original jurisdiction for the management of this process could have been retained by the C.O.E. which allowed for more latitude at arriving at an agreed solution. Instead, in an inordinately hasty waiver of responsibility by the C.O.E. the primary jurisdiction was placed in the hands of the E.P.A. with the announced reason that the E.P.A. had "more clout" and could impose penalties within a 24 hour period. Operating in this climate, after totally intimidating the Washington City Attorney, the subsequent activity involved the engagement of new environmental engineers, additional attorneys, transfer of the management process from Salt Lake City to Denver and protracted hearings, consultations, requirements for completely new exploration of alternate sites or solutions, such that the final conclusion required approximately an additional year before a "Removal, Restoration, and Mitigation Plan for Washington City Green Spring Golf Course" was able to be presented to the Environmental Protection Agency for their consideration. The Green Spring Golf Course was allowed to open on November 4, 1989 on its original schedule, but under an enormous cloud of possible discontinuance, changed routings, imposition of fines and potential financial disaster. One of the key stipulations of the mitigation plan was the requirement for creating 7.5 acres of new wetlands over and above the maintenance of 4.62 acres of “defined" wetlands and the restoration of an additional 1.34 acres of wetlands within the perimeters of the golf course. Inasmuch as the city of Washington was physically unable to create this much wetlands within the area of the golf course, our firm voluntarily agreed to donate an additional adjacent 2.9 acres of land in such a location as to allow the 7.5 acre stipulation to be achieved. This donation was unilateral and was based on an appraised value of $330,000. It should be noted that as far as can be determined at the present date, the offi cial "Removal Restoration and Mitigation Plan for Washington City", as prepared for the Environmental Protection Agency by Eckhof, Watson and Preator Engineer, submitted on June 15, 1990 which included monitoring requirements up through 1993, was never accepted in writing by either the C.O.E. or the E.P.A. However, a written status report from E.P.A. Region VIII dated December 19, 1994, as a follow up to an inter-agency inspection of August 13, 1994, required the continuation of additional monitoring for an additional five year period from the date of the let ter. Washington City has prepared a report dated July 10, 1995 addressed to your office in Salt Lake City outlining their cost experiences and additional cash outlays required for the processes outlined above. We refer you to that letter for an indication of the cash outlays required from Washington City of $589,000. However, we have noted that not included in their costs was the E.P.A. fine of $75,000, their monitoring costs over a period of five years of $125,000 and an unaccounted for cost of mechanical pressurized irrigation to create wetlands by artificial means rather than natural flow. The resultant total of $754,000 plus the additional $330,000 of land donated by us obviously means that this project was impacted by over $1,084,000 or essentially a quarter of the initial amount of the 4.3 million dollar bond issue. I am sure this is the kind of experience, where one or two entities are subjected to a tremendous burden in behalf of the greater good, that argues loudly for review of the current act and an oversight and control of those who are given the responsibility for administering it. We accordingly heartily endorse your efforts to enact the Omnibus Property Rights Act of 1995. Senator Hatch attached is a magazine article from our file which you may find to be interesting reading regarding this subject of wetlands. Very truly yours, ROBERT B. BARKER, If parts of your backyard are a bit soggy after The strange case By Warren Brookes IN EARLY AUGUST, amidst outcries from professional environmentalists, the Bush Administration moved to lift some of the more onerous property restrictions imposed by its own Envi ronmental Protection Agency. Earli er, on June 12, property rights won another victory. After hours of acri monious debate, the Senate voted 55 to 44 to tack on a very powerful amendment to a highway funding bill. Called the Private Property Rights Act, the amendment seeks to restore some of the sanctity of private property that has eroded in recent years in the U.S. If the amendment passes in the House of Representatives as well, it will require the government to be a little less cavalier with its environmen tal regulations. When the authorities issue rules that damage property val ues, they must at least consider treating the rales as a "taking" under the Constitution. If a taking there is, the property owner would be compensated-just as he would be if the government took his land outright. The conflict between private property rights and governmental power goes back a long way-as evidenced by the attention that the founding fathers paid to it. The writers of the Constitution declared in the Fifth Amendment that "private property (shall not) be taken for public use without just compensation." For the first century this limitation on governmental power was the law, it wasn't the subject of much debate. If the government needed land for a garrison or a prison, it might compel an owner to sell, but the owner got paid. The only issue was how much. impose a cost. It would simply require the government to compensate property owners for a significant loss they incur from environmental restrictions imposed upon their property. Consider what happened in 1988 in Riverside County, Calif. The U.S. Fish & Wildlife Service declared the Stephen's kangaroo rat an endangered species. The result: Riverside County and local cities set aside 80,000 acres as wildlife preserves. Where the money would come from was not the Fish & Wildlife Service's problem. As then FWS Field Supervi sor Nancy Kaufman told the Wash ington Post, "I'm not required by law to analyze the housing price aspect for the average Californian." If her enforcement helped deprive lower-income people of housing, that was no concern of hers. A local government agency financed the preserves with a fee of $1,950 imposed on every acre developed in the county. Up went the price of housing. But under the new Private Property Rights Act, bureaucrats like Kaufman will have to consider the cost. The proposed law codifies an executive order issued in 1988 by President Reagan. This order required every federal agency to assess in advance the Dry county 84,000 acres of wetlands. Forbes September 2, 1991 Wet county The swamps grow to 259,000 acres. 105 |