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Barbara Anney

If parts of your backyard are a bit soggy after
a,heavy rain, watch out! According to current EPA regulations,
it's wetland and you better not disturb it.

The strange case
of the glancing geese

By Warren Brookes

[graphic]

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 Environmental Protection Agency. Earlier, on June 12, property rights won another victory. After hours of acrimonious 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 environmental regulations. When the authorities isque rules that damage property values, they must at least consider treating the rules 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.

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Forbes September 2, 1991

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 buildings 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?

The Senate bill requires federal agencies to assess the regulations a second time before regulating a property to the point of uselessness. There is nothing antienvironmental in the bill. It puts no limits on environmental protection measures. But it does

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 endan gered 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 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

[graphic]

Dry county

84,000 acres of wetlands.

Forbes September 2, 1991

Wet county

The swamps grew to 259,000 acres.

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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 cach 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 committed 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 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 periodic 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 hint of water down to 18 inches below the ground for seven consecutive 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

The 1989 manual Burgeneratic swar

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 suddenly sanctioned 740,000 additional acres against filling or other diaturbance, 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 Jowaisses, 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 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 currently man federal wetlands policy."

In Hampton, Va., Thomas Nelson Community lege had made a routine requ Corps check of a proposed site for its new sports result was a finding of and "wetlands” at the lar findings could, in a regulatory mayhem, threass acre Nelson Farms subelvis 800-home, 133-acre Woods subdivision, Hampton Roads Center and a 600-home Hampe subdivision. As Hampton James Eason told the cal Press, "It's very scary. It's able it could halt all develing the city of Hampton."

This quagmire trapped of the most obvious candid permits, such as Richard This retired state trooper more had invested $16,86 building lot in the midst oped residential area in a Dorchester County only the 0.7-acre lot was "no lands." Although he wan only an eighth of an acre retirement home, the US. Wildlife Service recommended denial of his application.

Eventually the Corps did issue permit to fill the sliver of land, but only if "the permittee shall mitig at a 2:1 ratio for wetlands constructing 0.25 acres of wooded nontidal wetlands." In other Adamski had to find somes to sell him a permanent on twice as much land. Not Adamski remains in limbo. I walked through the wetting mostly wooded “wetlands" (the wettest season), my emerged pristinely unmud

As the outrage over his high-handed policies mounted, Reilly had 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 story— not just from farmers, but from de velopers and respected political leaders." He suggested that the entire process had gotten out of hand.

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