Wetlands impact of any regulation or sanction on property values, to determine whether that impact constitutes a tak ing under law, and to seek to avoid such impacts. The potential for substantial monetary impact was borne out by a series of recent court deci sions. In the U.S. Claims Court in 1990 and 1991, Judge Loren Smith awarded $64 million plus interest to property owners injured by such environmental sanctions. The Senate bill has some professional environmentalists up in arms. If cach of their efforts to protect "biodi versity" carries a price tag, the terms of the debate shift in ways they do not like. It will no longer be: Should we protect the spotted owl? It becomes: How much are we willing to spend to protect the spotted owl? A setback for the environment? Not at all. If the Private Property Rights Act passes the House of Representatives, people will continue to look to the government to protect the environment. However, the bill will serve notice on the extreme environmentalists that Americans are not willing to give them a license to ignore property rights in the guise of protecting biodiversity. When the final Senate vote was tallied, the environmental groups and their numerous representatives on the staffs of U.S. senators were lined up at the back of the Senate Chamber, visibly stunned at the suddenness and magnitude of their defeat. It was a complete reversal in just nine months of the defeat-by nine votes of a similar provision. It was a bitter pill for Senate Majority Leader George Mitchell (D-Me.), who wound up the debate with an impassioned cry that this bill, like Reagan's executive order, sought "to undermine regulatory protection by chilling agency action." But his motion to table the bill was shot down by 17 Democrats who teamed with 38 Republicans to hand environmental extremists the biggest legislative defeat in their history. The fact that 17 Democrats did vote for the Private Property Rights Act may demonstrate the rising political backlash against the extremes of the green lobby. Ironically, this setback had its roots in what had looked like a major victory for the greens. In 1988 presiden tial candidate George Bush pledged "no net loss in wetlands." But on taking office, Bush faced the conse quences of his statement. When the government enlarged the definition of "wetlands," Bush met angry protest from traditional Republican con stituencies, farmers, businesses, real estate developers, landowners and local governments. What caused the backlash was not the statement itself but an act of marshes, bogs, swamps and lowlands for conversion to active farming and commercial and residential develop ment. The EPA claims this has de stroyed over half of all US wer lands or more than 100 million acres. But how to protect the wet lands? Reilly gave his answer long ago As executive director of Laurance Rockefeller's Task Force on Land Use and Urban Growth, he helped write The Use of Land: A Citizens' Policy "Loss in land value is no justification for invalidating regulation of land use. bureaucratic high-handedness apparently encouraged by Bush's pledge. This took the form of the 1989 Federal Manual for Identifying and Delincating Jurisdictional Wetlands, which extended federal jurisdiction over some 100 million additional acres of property, most of it privately owned. What outraged so many people was that most of the newly restricted land had only the remotest connection with water. Why did the bureaucracy get so out of hand? When President Bush appointed William Reilly to head the Environmental Protection Agency, Bush confirmed the Washington adage that "personnel is policy." He had selected one of the most commit ted land-use planners in the environ mental movement. No question, there was and is a real need to arrest the long-term trend of filling wetlands, draining and Guide to Urban Growth. It laid out many of the premises for using biological diversity as a rationale for lim iting the two bêtes noires of environ mentalism: single-family housing expansion and commercial agriculture. It noted that land use could be restricted at no cost to the government, through jurisdictional control. Reilly's appointment as EPA admin istrator coincided with the early 1989 release of the new manual, which, in attempting to define "wetlands," ex tended the reach of the 1972 Clean Water Act. That manual asserted "jurisdiction" (requiring federal per mits) well beyond traditional marshes and bogs. It extended it to cover any land with "hydric soils" or "hydrophytic vegetation." In plain English, that is land showing evidence of peri odic saturation or containing plants, such as cattails, that are characteristic of wetlands A third criterion defined Forbes September 2, 1991 "wetland" land where there is even a hint of water down to 18 inches below the ground for seven consecu tive days of the growing season. Un der the August proposal, some of those criteria were softened. Most important, the length of time a wetland must be saturated would be in creased to 21 consecutive days of the growing season. One of the areas hardest hit by the 1989 rules was Maryland's Dorches Federal Manual for Identifying and Delineating Jurisdictional Wetlands The 1909 manual ter County (see map, p. 105). Previously some 275,000 acres of privately owned land in Maryland had been classified as wetland. With the 1989 manual, the figure topped 1 million acres. This meant that the govern muddenly sanctioned 740,000 additional acres against filling or other disturbance, unless specifically permitted by the Army Corps of En gineers, with the EPA and FWS exercising virtual veto power. Under the new proposal, the amount of wetlands would still increase, but by less than the 740,000 acres. The 1989 manual, however, remains the law of the land. The revisions would be unlikely to go into effect before early 1992. The permitting process itself remains a bureaucratic swamp. This outraged Margaret Ann Reigle, who had retired from her job as vice president of finance at New York's Daily News. With her hus Forbes ■ September 2, 1991 band, C. Charles Jowaisses, a retired Columbia Pictures vice president, Peggy Reigle moved to Cambridge, in Dorchester County, to raise flow ers and enjoy life. As a retirement investment the couple had bought a 138-acre abandoned farm that they planned to subdivide into 10-acre lots. Within months, however, Reigle was out of retirement and at war with the federal government. Reigle's war started after she heard what the new definitions had done to an elderly neighbor. The neighbor had been informed that under the new rules, her property was classified as nontidal wetlands and therefore could not be developed. The neigh bor had been counting on proceeds from land sales to build a new home. In May 1990 Peggy Reigle wrote an angry letter to President Bush (one of thousands like it received by the White House). When local papers reprinted the letter, Reigle was besieged by calls from others like her, outraged by the new policy. She formed the Fairness to Land Owners Committee; in two weeks it signed up some 2,000 citizens and now boasts a membership of over 6,000 Marylanders and 2,500 from other states. Its credo: "We will not accept the government's taking our land without just compensation." The grass-roots backlash against federal wetlands imperialism was under way. And soon Congress was paying heed. In January and February Representative John LaFalce (D-N.Y.), chairman of the House Small Busi ness Committee, held hearings. Builders, realtors, national and local officials and developers shared stories about the quagmire of wetlands regulations. The town supervisor of Wheatfield, in Niagara County, N.Y., told LaFalce that if the Corps issued permits based on the 1989 manual, "areas like Niagara County will be deprived of approximately 65% of the remaining developmental property." David Brody, attorney for the Niagara Frontier Builders Associ ation, said the manual's implementa tion, along with other problems, would result in "a 35% reduction in new home starts in Niagara and Eric counties in 1991." After the hearings LaFalce sent President Bush a letter "to alert [him] to the regulatory travesty curren In Hampton, Va., This quagmire trapped eve of the most obvious candidates permits, such as Richard Adam This retired state trooper Ham 1 more had invested $16,800 building lot in the midst of a oped residential area in a Dorchester County only the 0.7-acre lot was "ne lands." Although he wasse only an eighth of an acre b retirement home, the US. Wildlife Service recommended den al of his application. but Eventually the Corps permit to fill the sliver of land only if "the permittee shall at a 2:1 ratio for wetland constructing 0.25 acres of nontidal wetlands." In of Adamski had to find somes to sell him a permanent on twice as much land. Noɑ Adamski remains in limbo. I walked through the wett mostly wooded "wetlands" Apr (the wettest season), my dress shoes emerged pristinely unmuded. As the outrage over his high-handed policies mounted, Reilly had to beat a strategic retreat. On Mar. 7 inc admitted to the prestigious American Farmland Trust: "We muddenly found ourselves in the censur of maelstrom. Everywhere I traveled ! heard a local wetlands horror storynot just from farmers, but from de velopers and respected political leaders." He suggested that the entire process had gotten out of hand. 107 But tell that to William Ellen, a successful and respected Virginia marine engineer who is now appealing a prison term and a large fine for having "filled" more than 15 acres of Eastern Shore "nontidal wetlands" when he bulldozed these seemingly dry and forested acres to create large nesting ponds for ducks and geese as well as a management complex. Ellen was working on a project for Paul Tudor Jones II, the high-flying futures trader (see p. 184) who in August 1987 had bought 3,200 acres in Dorchester County, very close to the Blackwater Wildlife Refuge. Jones' idea was to create a combination hunting and conservation preserve as well as a showplace estate. The centerpiece of the project is a 103-acre wildlife sanctuary developed with the assistance of the Maryland Department of Natural Resources. This sanctuary includes ponds, shrub swamps, food plants and grassland plots all designed to attract geese, ducks and other migrating waterfowl. In May 1990 Jones suddenly pleaded guilty to one misdemeanor related to negligent filling of wetlands, agreeing to pay $1 million to the National Fish & Wildlife Foundation to help the Blackwater Refuge, plus a $1 million fine. The plea allowed Jones to avoid a costly and debilitating trial, and possibly even a jail term and the loss of his trading license. However, no such deal was afforded Bill Ellen, himself a well-known conservationist who, with his wife, runs a rescue/rehab mission for injured wildlife and waterfowl. How could Ellen be prosecuted for converting land that was so dry waterspraying had to be used as a dust suppressant during bulldozing into large nesting ponds for waterfow!? That question disturbed trial judge Frederic Smalkin at the U.S. District Court in Baltimore, and the answer he got was bizarre. Prosecution witness Charles Rhodes, one of the EPA's top scientists on wetlands, said that even though the forested "wetlands" had been replaced by new ponds, the ecology was supposedly worse off. Why? The problem was bird shit. "The sanctuary pond is designed to have a large concentration of waterfowl, and before the restoration plan dumping into and pollution of the nation's "navigable waters," rivers, harbors, canals, etc. In a 1975 decision (Natural Resources Defense Council Callaway), a Washington, D.C. district judge ruled that federal jurisdiction applied beyond navigable waters to any wetlands that might remotely feed into such rivers and harbors. But even that did not cover "isolated wetlands" with no connection to "navigable waters"-like the puddles in your backyard after a heavy rain. Nevertheless, since 1975, jurisdiction has been expanded entirely by fiat and court interpretation to cover that definition in the EPA manual-water 18 inches down. The fig leaf for this judicial and executive imperialism is Article 1, Section 8, paragraph 3, of the Constitution, which gives Congress the right Forbes September 2, 1991 "to regulate commerce... among In a brutal display of naked power, But on Apr. 19 a high-visibility case blew up in the government's face. James Allen and Mary Ann Moseley, Missouri farmers, had built a perimeter levee to keep their Mississippi Basin farm from flooding. The government declared the area to be wet lands of the United States, sued the Moseleys for violations of the Clean Water Act and sought fines of $25,000 a day for as long as the violation was in effect. But the Moseleys are members of the American Agriculture Movement, a progressive farm organization that has joined the mainstream farm groups in opposing the extension of the definition of "wetlands" and supporting the Private Property Rights Act. AAM's Fayetteville, Ark. lawyer, John Arens, has a record of beating the government in court-and he did it again. When Arens was not allowed to bring in his own "expert witnesses," he minced up the government "ex perts" by demonstrating the capricious nature of the so-called wetlands law. He asked one EPA expert if it were not true that, were he to play baseball on a diamond built on hydric soils and went into the batter's box and scuffed his cleats, and then knocked the resulting dirt off them, back onto the field, he would be in technical viola tion of the Clean Water Act? "When he (the so-called expert] was forced to answer yes, I looked at the jury and I knew we were on our way!" Arens said. "But what really convinced the jury the government had no case was when it discovered that the government prosecutors had no law!" "While the jury was deliberating, they kept sending out to the judge for copies of the 'wetlands law.' When the judge sent them federal regulations, they sent back and asked for the law. When the judge sent them the Clean Water Act, and said this was all the law he had to give them, they [the jury] decided the government had no case because it had no jurisdiction." More setbacks awaited the power. grabbing bureaucrats. In January 1989 then Assistant U.S. Attorney General Stephen Markman had a memorandum prepared on a big wetlands case the Justice Department was prosecuting. The memorandum demonstrated, with dozens of citations, the flimsiness of the government's wetlands policies, concluding: "The Corps and the EPA appear to have circumvented the Constitution's requirements... and the federal district and circuit courts have not corrected them." The courts have apparently been paying attention. And so the battle has been joined. On the one hand are the wildlife-atany-price people. On the other, people who think that environmental policy ought not override property rights. The environmental extremists have made their intentions clear. In 1975 poet Gary Snyder won the Pulitzer Prize for his radical call for an "ultimate democracy [in which] plants and animals are also people." He wrote that they should "be given a place and a voice in the political discussions of the humans.... What we must find a way to do... is incorporate the other people... into the councils of government." A few years later, in 1980, a leading ecologist, Joseph Petulla, said, "The Marine Mammal Protection Act [and] the Endangered Species Act [embody] the legal idea that a listed nonhuman resident of the U.S. is guaranteed, in a special sense, life and liberty." 109 Of course, the Constitution says nothing about the rights of trees, snakes, owls and fish. Which may be why, back in 1973, Reilly's task force essentially called for the repeal of the takings clause of the Fifth Amend ment: "Many [judicial] precedents are anachronistic now that land is coming to be regarded as a basic natural resource to be protected and conserved.... It is time that the U.S. Supreme Court re-examine its precedents that seem to require a balancing of public benefit against land value loss... and declare that, when the protection of natural, cultural or acsthetic resources or the assurance of orderly development are involved, a mere loss in land value is no justification for invalidating the regulation of Land use [italics added]." "A mere loss in land value..." In that "mere" resides a philosophy that questions the values of private property and individual freedom. But after years of having things pretty much their own way, people who think like Reilly are getting a real fight. Idaho Republican Steve Symms, who leads the fight in the Senate for 112 the protection of property rights, says: "We should adopt a policy of no net loss of private property." Since the federal government already owns some 40% of U.S. land, Symms ar gues that it ought to be willing to swap some of its 730 million acres in order to obtain privately owned land that is environmentally sensitive. If, say, the National Park Service wants 50,000 acres to provide more protection for Shenandoah National Park, it can ask the Forest Service or Bureau of Land Management to sell to private citizens a like amount to finance the acquisition. Such a policy of no net gain in federal lands was introduced this summer in the House in legislation drafted by Representative Bill Brewster, Democrat from Oklahoma. Do we really want the federal gov. ernment owning even more of the country, whether through outright purchase or through limitations on land use? Free-market environmentalists like R.J. Smith of the Cato Institute argue that more government ownership and control would actually harm the environment. He says: "Ecological devastation... invariably accompanies too much gov ernment ownership of land. You I don't have to look just to Eastern Europe for confirmation. You need only examine the condition of most of the Bureau of Land Management inventory of properties, or remember what the Park Service allowed to hap pen at Yellowstone." But the zealots won't give up. On Oct. I the EPA's regional office in Chicago awarded a grant of $50,000 over three years to the Sierra Club's local "Swamp Squad," which amounts to an unofficial policing of the environment. These vigilantes spy on developers and other land and property owners to report potential wetland violations. The EPA press release quoted Dale Bryson, the region al director of its water division: "This grant will allow them to continue their valuable work in a more vigor |