laws serve to protect wildlife, which is a public property resource, like the air and the water, that the public is entitled to protect against destruction. Section 503(a)(2) establishes a general mandate for the Secretary of the Army and the Administrator of the Environmental Protection Agency to administer the section 404 program and the ESA "in a manner that has the least impact on private property owners' constitutional and other legal rights." Section 503(b) requires each agency to "develop and implement rules and regulations for ensuring that the constitutional and other legal rights of private property owners are protected when the agency head makes, or participates with other agencies in the making, of any final decision that restricts the use of private property. * **" Both of these provisions are completely one sided, and ignore how enforcement of the laws protects public and private property rights. Moreover, given the broad definition of "takings" in S. 605, these mandates would effectively require the agencies to stop implementing these laws. Section 504 prohibits either the Army Corps or the EPA from entering onto private property "to collect information regarding the property, unless the owner has consented in writing to the entry, been given notice of the entry, and been notified of the right to obtain any raw data collected at no cost. There are exceptions to this prohibition in the case of an entry for the purpose of obtaining consent to enter or to provide notice of a planned entry. Significantly, there is no exception for law enforcement purposes. Therefore, Federal government access would apparently be prohibited even if necessary to identify a suspected violation or to halt an ongoing violation of the law. Under section 505, data collected on private land cannot be used to "implement or enforce" the law unless the owner has access to the information, has received a description of how the information was collected, and had an opportunity to dispute the accuracy of the information. This Title also contains provisions for landowners to file administrative appeals from decisions under section 404 or the ESA. Under section 506, landowners could file administrative appeals, to be heard by an agency official other than the official who took the action, of jurisdictional determinations, denial of or conditions imposed on a permit, administrative penalties, or mitigation orders. In addition, the owner can seek financial compensation administratively. Similarly, under section 507, a landowner can obtain administrative review of ESA decisions, including critical habitat determinations, denial of or conditions on a permit, jeopardy or incidental take determinations, administrative penalties, or "[t]he imposition of an order prohibiting or substantially limiting the use of property, as well as financial compensation. These broad appeal procedures provide numerous unnecessary opportunities to block enforcement of the law, including implementation of mitigation measures after the owner has been found in violation of the law. In addition, these appeal procedures are entirely one-sided, allowing administrative appeals by those regulated under the laws but not by those protected by the laws. Thus, in this respect as well, S. 605 "protects" the property rights of developers and resource industries, but puts homeowners and others interested in protecting their property values at a significant disadvantage. Section 508 establishes special procedures for the payment of "compensation" on account of regulatory restrictions under section 404 or the ESA. An owner is entitled to payment if the agency action results in a 33 percent or greater reduction in the fair market value, or the economically viable use, of the "affected portion" of the property, as determined by "a qualified appraisal expert." A claimant may file a request for payment and, apparently without any decision or other intervention by the agency, the agency head "shall stay" the decision and must provide the owner two offers: (1) to purchase the affected property at fair market value assuming no use restrictions, and (2) an offer to compensate for the difference between the fair market value of the property without the restrictions and the fair market value with the restrictions. The owner can accept one of the offers or reject both offers. If he rejects both offers, the owner may submit the claim to binding arbitration. As under Title II, any award must be paid by the agency 'out of currently available appropriations supporting the activities giving rise to the claim for compensation." Owners challenging regulatory restrictions under the ESA or Section 404 also apparently would have the right to invoke the judicial compensation procedures outlined in Title II. RALPH Y. MCCLURE, Washington, Utah, July 10, 1995. Hon. ORRIN G. HATCH, Federal Building, Salt Lake City, UT. DEAR SENATOR HATCH: This letter is a brief summary of the difficult situation Washington City was in as a result of the wetland legislation. Even though this "so called" wetlands violation was not intentional, it created a severe financial hardship that was extremely difficult to over come. Washington City is a community of approximately 4200 people located two miles east of St. George. Our annual operating budget at the time the violation occurred was approximately $500,000.00. We were and still remain a bedroom community, city leaders had for years sought ways to enhance commercial and industrial development. For a number of years city officials had been negotiating with the BLM, the State Land Board, and private land owners to construct a public golf course. These negotiations came to fruition in the spring of 1988 when a 160 acre tract of land north of interchange 10 in Washington City was acquired. The City had conducted two extensive feasibility studies, then issued a $4.3 million revenue bond for the construction of the course. Construction began on the course in December of 1989. On May 12, 1989, Mr. Steve Peacock from the Salt Lake City office of the Army Corps of Engineers, arrived on the site. He notified city officials that they had not complied with Corps regulations by failing to apply for a Section 404 permit pursuant to the Clean Water Act. He further informed the city that we could be severely fined if we did not comply. He also indicated that he would be turning this matter over to the EPA. The wetlands area referred to by Peacock was principally induced through irrigation. Two ditches had been dug years ago around the "wetlands" area to enhance foraging for livestock. The seepage from these dirt bank ditches had created the majority of the "wetland" area. The City obtained an extensive feasibility study prior to construction. The Study, done by a prominent engineering firm, stated that no Section 404 permits would be needed for this project. The construction of the golf course had enhanced the environmental aspects of the area. The increased watering and creation of green areas had already attracted waterfowl and wildlife. The presence of the city ensured that the past vandalism and destruction that has incurred in the area would cease. Until construction began, the site was used for a dumping site for waste automobile oil. It was also littered with refuse and debris from illegal dumping. As a result of this problem Washington City was seriously damaged by the cash requirements to Mitigate this wetlands problem. At least $589,000 in cash has been spent: These capital expenses had to be funded by the City and the issuance of bond anticipation notes. In addition, the city was fined by EPA to the tune of $75,000.00. For the past five years the city has paid our engineering firm to monitor the mitigated area to determine compliance. On December 19, 1994, the EPA by official let ter informed us that we would have to continue monitoring the area for an additional five years. Washington City definitely feels a need to change the Act at this time. Sincerely, RALPH MCCLURE, City Manager. Hon. TERRILL CLOVE, MAYOR, Re: Green Spring Golf Course Compliance Order No. 90-20-C U.S. ENVIRONMENTAL PROTECTION AGENCY, REGION VIII, Denver, Colorado, December 19, 1994. DEAR MAYOR CLOVE: This is to advise you of the statue of the restored and mitigation wetlands on the Green Spring Golf Course as determined through an interagency inspection on August 23, 1994. This inspection included yourself, golf course staff, representatives of the U.S. Fish and Wildlife Service, U.S. Army Corps of Engineers, and EPA. In general the mitigation/restoration sites appeared to be functioning well, based upon the vegetative growth (plant species present, species diversity, percent cover), water dispersion, presence of wildlife, and general appearance. There are two areas of concern: (1) The wetland creation west of the 15th green on a hillside. We recommend that water application be continued at the previous rate and schedule, as this has apparently resulted in an area that shows considerable diversity representative of a wetland/upland transition zone. This type of area provides good wildlife habitat, as animal sign in the area indicated, and makes a significant contribution to the food web. (2) The area to the south of the golf course. The problems with the sprinkler system have been corrected and the area appears to be slowly developing wetland characteristics. It was indicated that the City has obtained some rights to flows in the spring-fed drainage to the west of this area. We recommend that a portion of the water in this drainage be diverted to the upgradient (north side) of this mitigation area and spread out over the area as soon as water rights are obtained to allow adequate flows to saturate the soils. Any excess flow could then be trapped at the lower end and diverted back to the drainage. This would provide a system of low maintenance and require little personnel time. The current system does not appear to be achieving the intended results in as timely a fashion as had been expected. We have discussed this with Ms. Boyd of Eckhoff, Watson, and Preator, and she agrees that gravity flow from the spring system is a better way to operate the system. She has indicated that she will discuss this with you. We fell that the City can be relieved of further responsibility in this matter once the following conditions are agreed to: 1. The City will incorporate into the restoration/mitigation operations the recommendations stated above. Recommendation (2) above is contingent upon the City's acquisition of adequate water quantities to maintain the described area as an emergent wetland. 2. The City will adopt the monitoring plan currently used by Eckhoff, Watson, and Preator, using fixed photo points and directions. Monitoring reports, which shall include captioned photographs briefly explaining each, shall be submitted to EPA two times annually. Preferred times are early May and early October. Monitoring shall continue for a period of five (5) years from the date of this letter. 3. During the five year monitoring period, the City of Washington agrees to perform whatever measures EPA deems necessary to correct any situation that is resulting in a mitigation/restoration area not functioning as intended. 4. At the end of the five year period, the City of Washington is relieved of monitoring requirements and responsibilities outlined in the EPA Administrative Order 90-20-C. We recommend you that the restored, created, and pre-existing wetland are waters of the United States, and are afforded full protection under Sections 301 and 404 of the Clean Water Act. It is therefore necessary that any modifications to these wetlands be authorized by the appropriate permit, or by EPA in conjunction with improvements required by EPA. We appreciate the cooperation you have shown in this matter, and encourage you to contact us should any situation arise on the golf course where we may provide technical assistance in maintaining the wetlands. Sincerely, MAX H. DODSON, DIRECTOR, Water Management Division. Please signify your agreement with the conditions outlined in this letter by signing in the space below. Please return the signed original to us for our files and retain a copy for your files. (Signed) Terrill Clove, (Typed) TERRILL CLOVE, Mayor, City of Washington, Utah. SPRINGVILLE CITY CORPORATION, Hon. ORRIN G. HATCH, Chairman, Judicial Committee, U. S. Senate, Dirksen Office Building, Washington, DC. DEAR SENATOR HATCH: We are pleased to offer this supplement to the record of the hearing on S. 605 which was held by you in Salt Lake City on July 3, 1995. We are especially pleased that S. 605, if it is enacted, will provide for some relief to property owners from actions of the U.S. Army Corps of Engineers in regulating wetlands under Section 404 of the Clean Water Act. The actions of the Corps of Engineers in that regard are causing significant problems for Springville City as related below. Springville City is the owner and developer of land in the northwest part of the city known as Springville City Industrial Park. The land was formerly a pasture. In the 1970s, the city determined to develop the land for industrial use in order to provide jobs for residents of the area. The first phase of the park was begun in 1976 in the area south of State Highway 75. Improvements in that area, including construction of roads and installation of sewer, water and electric utilities, were partially funded by a grant from the Economic Development Administration. During the construction, a stream which carried a small amount of seepage water and some irrigation drainage was relocated. The old stream channel was abandoned and new streams constructed along both sides of Mountain Springs Parkway, which is the main roadway through the park. Companies which own industrial sites along the street have used the water to create ponds and streams in conjunction with their landscaping. The city also diverted treated sewer effluent into the streams which increased the flow several fold. The ponds and streams are beautiful areas which are habitat for large numbers of wild birds as well as some ducks and geese which have been planted there. Those wet areas were created by the city and the businesses in the park without any requirement by the Corps of Engineers to do so. The net amount of wetlands in the area is substantially greater now than before the industrial park was developed. One of the building sites in the park was recently sold to E. Excel Corporation. The abandoned stream channel runs through that site. E. Excel began construction on the site earlier this year. The Corps of Engineers considers the old stream channel to be a wetland and has informed the owner that it has unlawfully filled a wetland. The Corps is demanding that E. Excel provide a mitigation area to replace the wetland which has allegedly been destroyed. The Corps has refused to consider any of the wetland created by the city in development of the industrial park as replacing the old stream bed. There is a similar problem with the second phase of the industrial park which is located north of State Highway 75. Development of that portion of the park was begun in the early 1980s. Again, a large portion of the cost of improvements was funded by a grant from the Economic Development Administration. That funding included on-site improvements as well as a substantial amount for an off-site water line. Other federal funds were involved in the form of an Urban Development Action Grant which allowed Springville City to upgrade its utility systems to provide adequate service to industries located in the park. As part of the development, Spring Creek, which runs from east to west through the property, was relocated in 1983-1984. The creek was placed in a new channel to minimize flooding in the area and the old stream bed was abandoned. The stream relocation work was done with the knowledge and approval of the Corps of Engineers. Representatives of the Corps were at the job site. The new stream is slow moving and contains large amounts of vegetation and wildlife. The abandoned channel runs through several sites in the park which the city wishes to sell as business locations. The Corps informed the city at the time of the channel relocation that the remainder of the industrial park was not considered to be wetlands and that there would not be a problem with continued development. The Corps of Engineers has now changed its position. Mr. Dean Allan, the city's economic development director recently toured the area with Corps representatives. Mr. Allan was informed that the Corps considers the abandoned stream bed to be a wetland. In fact, the Corps representatives several times referred to the wetland as "our property" and informed Mr. Allan that the city could do nothing with it except with permission of the Corps of Engineers. The city or its buyers will be required to provide a mitigation area if any of that wetland is used for development. The Corps does not consider the new stream channel to be a replacement or mitigation for the abandoned stream channel. The unreasonable and changed position taken by the Corps of Engineers makes it extremely difficult, if not impossible, for the city to complete development of the industrial park. The action of the Corps has, in effect, deprived the city of the ability to sell the remaining sites. Approximately 35 acres of property has been effectively taken by the wetlands regulations. Similar property in other industrial parks in Utah County is selling for $40,000 per acre and higher. That is a taking of property for which the city should be compensated. In addition to depriving the city of the value of the property, the action of the Corps will also end the industrial development which was to have provided jobs for area residents. A substantial portion of the several million dollars of federal and local money invested in the park will be wasted. If enacted, S. 605 will give Springville City and other property owners in similar situations protection against regulatory deprivation of property as described above. Section 502(4) of the proposed legislation excludes local governments such as Springville City from the definition of private property owner. Because of that exclusion, it appears that the city would not have any right to the administrative appeal process and other rights under Title 5. State and local governments, in their capacity as property owners, should have the same rights under the act as a private individual. We are concerned that unless the definition is changed, federal agencies such as the Corps of Engineers will be able to regulate lands owned by the city with relative impunity as is the present practice. The committee should consider amending the definition so that state and local governments can also have rights under Title 5 of the bill. We also wish to point out that the federal government has acted inconsistently with regard to Springville City Industrial Park. Not only has the Corps of Engineers changed its position with regard to what portions of the park are considered wetlands, it is telling the city that it cannot do what another agency, the Economic Development Administration, approved and encouraged the city to do. Very truly yours, DELORA P. BERTELSEN, GORDON F. SMITH, Councilman. GLADE Y. CREER, Councilman. LEON E. LEE, Councilman. GRANT H. PALFREYMAN, Councilman. IRIS SORENSON, Councilman. |