Then, beginning around the turn of the century, battles over land-use controls landed in court. A landowner might be prohibited from putting up a slaughterhouse where he wanted, lest the smells and noise and blood offend neighbors and lessen their property values. Was such a restriction a taking of private property? In most cases, the courts said no. Your right to go into the fat-rendering business or erect a 20-story apartment building clashes with my right to clean air or sunlight. And so a zoning law that decrees where factories or tall build ings can go doesn't amount to a confiscation of private property, even though it might make some property owners poorer. If there was an erosion of property rights, few people objected. The restrictions were sensible and hardly onerous.

So it went in the courts-zoning laws were almost always upheld. But governments can go only so far with their restrictions, and California crossed the line. In a 1987 Supreme Court case, Nollan v. California Coastal Zone Commission, the Court. ruled that the state's attempt to condition a building permit on a property owner's granting of access to a public beach was a taking and required com

pensation. It was a turning point for a court system that had for a long time been much more protective of politi cal liberties than of property rights. The justices said, in effect: If Califor nia wants more public beaches, it should buy the land it needs, not just take it.

The ancient controversy has taken a dramatic new turn with the rise of environmentalism in recent years. With wetlands rules and endangered species protection, the federal government is in the business of land-use control. So the old question again arises: When does regulation amount to confiscation? If your waterfront parcel is ecologically precious, can the government simply declare it unbuildable? Or must it appropriate the money to buy you out? If the government wants to preserve a species of owl, can it tell an owner of timberland that he can't touch the trees he owns? Or must it buy him out?

impose a cost. It would simply require the government to compensate prop erty 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 Supervisor Nancy Kaufman told the Washington 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

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 decisions. 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 each of their efforts to protect "biodiversity" 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

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bureaucratic high-handedness apparently encouraged by Bush's pledge. This took the form of the 1989 Federal Manual for Identifying and Delineating 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 draining and filling wetlands,

Guide to Urban Growth. It laid out many of the premises for using biological diversity as a rationale for limiting the two bêtes noires of environmentalism: 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 administrator coincided with the early 1989 release of the new manual, which, in attempting to define "wetlands," extended the reach of the 1972 Clean Water Act. That manual asserted "jurisdiction" (requiring federal permits) 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 periodic saturation or containing plants, such as cattails, that are characteristic of wetlands. A third criterion defined

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as "werland" 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. Under the August proposal, some of those criteria were softened. Most important, the length of time a wetland must be saturated would be increased 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

January 1999

The 1980 manual Bureaueratic swamp?

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 government maddenly sanctioned 740,000 additional acres against filling or other disturbance, unless specifically permitted by the Army Corps of Engineers, 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 Jowaianas, a retired Columbia Pictures vice president, Peggy Reigle moved to Cambridge, in Dorchester County, to raise flowers 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 neighbor 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 Business 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 Association, said the manual's implementation, along with other problems, would result in "a 35% reduction in new home starts in Niagara and Erie counties in 1991." After the hearings LaFalce sent President Bush a letter "to alert [him] to the regulatory

travesty currently
travesty currently masquerading
federal wetlands policy."

In Hampton, Va., meanwhile Thomas Nelson Community Cellege had made a routine request for a Corps check of a proposed 40-acre site for its new sports complex. The result was a finding of hydric sai and "wetlands" at the college. Similar findings could, in a cascade regulatory mayhem, threaten dhe 28acre Nelson Farms subdivision, 800-home, 133-acre Mick Mickael's Woods subdivision, the 30-acre Hampton Roads Center office and a 600-home Hampton We subdivision. As Hampson Mayo James Eason told the local Daily Press, "It's very scary. It's conceiv able it could halt all development in the city of Hampton."

This quagmire trapped even some of the most obvious candidates for permits, such as Richard Adamki. This retired state trooper from Baltimore had invested $16,500 in a building lot in the midst of a devel oped residential area in a hamlet in Dorchester County only be sold the 0.7-acre lot was "notidal wat lands." Although he wanted to only an eighth of an acre to build a retirement home, the US. Fish & Wildlife Service recommended denial of his application.

Eventually the Corps did issue a permit to fill the sliver af land, but only if "the permittee shall mitigat at a 2:1 ratio for wetlands lowes by constructing 0.25 acres of wooded nontidal wetlands." In other words, Adamski had to find somone will to sell him a permanent "ament on twice as much land. No taong Adamski remains in limbo. Yet when I walked through the wettest of these mostly wooded "wetlands" April (the wettest season), my dress shoes emerged pristinely unmuddied.

As the outrage over his high-handed policies mounted, Reilly had to beat a strategic retreat. On Mar. 7 he admitted to the prestigious American Farmland Trust: "We suddenly found ourselves in the center of a maelstrom. Everywhere I traveled ! heard a local wetlands horror storynot just from farmers, but from developers and respected political leaders." He suggested that the entire process had gotten out of hand.

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Wetlands

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 waterfowl? 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 water fowl, and before the restoration plan

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was implemented, all that fecal material [from the ducks and geese] was geared to be discharged right into the wetlands, whereas now it is actually designed to go through like a treatment system through the wetlands. So that would have been a negative impact, a water quality impact." In other words, the bird droppings, instead of staying in one place, would be spread over a wider area.

To which Judge Smalkin responded incredulously: "Are you saying that there is pollution from ducks, from having waterfowl on a pond, that that pollutes the water?" Incredibly, a jury convicted Ellen on five counts of filling wetlands. But U.S. Attorney Breckinridge Willcox said Ellen's conviction sends "a clear message that environmental criminals will, in fact, go to jail." The prosecution asked the court for a prison term

of 27 to 33 months, but Judge Smalkin sentenced Bill Ellen to six months in jail and four months of home detention.

These examples of federal wetlands policy as practiced in the early years of the Bush Administration are a case of a bureaucracy run amok. In fact, there is little law today that provides dueprocess federal jurisdiction over wetlands. There is only the Food Security Act of 1985, which asserts jurisdiction over those farmlands under federal subsidy programs. But farmers may remove that jurisdiction by taking their land out of the programs.

Otherwise, the wetlands program is very largely a contrivance of federal bureaucrats, sometimes working with friendly courts to expand Section 404 of the Clean Water Act. Yet this act makes no mention of "wetlands" and is designed to regulate only direct

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