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Wetlands

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impact of any regulation or sanction tial candidate George Bush pledged marshes, lwgs, swamps and loowlanel on property values, to determine "no net loss in wetlands." But on for conversion ww active farming and whether that impact constitutes a tak taking office, Bush faced the conse- commercial and residential develop ing under law, and to seck to avoid quences of his statement. When the ment. The EPA claims this has de such impacts. The potential for sub- government enlarged the definition stroyed over half of all U.S. wet stantial monetary impact was borne of “wedands,” Bush met angry pro

lands-or more than 10 million out by a series of recent court deci. test from traditional Republican con- acres. But how to protect the wet sions. In the U.S. Claims Court in stituencies, farmers, businesses, real lands? Reilly gave his answer long ago: 1990 and 1991, Judge Loren Smith estate developers, landowners and lo- As executive director of Laurance awarded $64 million plus interest to cal governments.

Rockefeller's Task Force on i and Use property owners injured by such envi- What caused the backlash was not and Urban Growth, he helped write ronmental sanctions.

the statement itself but an act of The Use of Land: A Citizens' Policy The Senate bill has some profes. sional cnvironmentalists 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 Repre. sentatives, people will continue to look to the government to protect the environment. However, the bill will serve notice on the extreme environmencalists 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 callied, the environmental groups and EPA chief William Reilly their numerous representatives on the "Loss in land value is no justification for invalidating regulation of land use." staffs of U.S. senators were lined up at the back of the Senate Chamber, visibly stunncd at the suddenness and bureaucratic high-handedness appar- Guide to Urban Growth. It laid out magnitude of their defeat. It was a endly encouraged by Bush's pledge. many of the premises for using bio. complete reversal in just nine months This took the form of the 1989 Feder- logical diversity as a rationale for limof the defeat-by ninc votes of a al Manual for Identifying and Delin- iting the two bêtes noires of environsimilar provision.

eating Jurisdictional Wetlands, which mentalism: single-family housing exIt was a bitter pill for Scnate Major- extended federal jurisdiction over pansion and commercial agriculture. ity Leader George Mitchell (D-Me.), somc 100 million additional acres of It noted that land use could be rewho wound up the debate with an property, most of it privately owned. stricted at no cost to the government, impassioned cry that this bill, like What outraged so many people was through jurisdictional control. Reagan's executive order, sought to that most of the newly restricted land Reilly's appointment as Era adminunderminc regulatory protection by had only the remotest connection istrator coincided with the carly 1989 chilling agency action.” But his mo- with water.

release of the new manual, which, in tion to table the bill was shot down by Why did the bureaucracy get so out attempting to definc “wetlands," ex 17 Democrats who teamed with 38 of hand? When President Bush ap- tended the reach of the 1972 Ckan Republicans to hand environmental pointed William Reilly to head the Water Act. That manual asserted extremists the biggest lcgislative de- Environmental Protection Agency, “jurisdiction" (requiring federal perfeat in their history. The fact that 17 Bush confirmed the Washington ad. mics) well beyond traditional marshes Democrats did vote for the Private age that “personnel is policy." He and bogs. It extended it to cover any Property Rights Act may demonstrate had selected one of the most commit- land with “hydric soils" or "hydrothe rising political backlash against ted land-use planners in the environ. phytic vegetation." In plain English, the extremes of the green lobby. mcntal movement.

that is land showing evidence of periIronically, this setback had its roots No question, there was and is a real odic saturation or containing plants, in what had looked like a major vic- nccd to arrest the long-term trend of such as cattails, that are characteristic tory for the greens. In 1988 presiden- draining and filling werlands, of wetlands. A third criterion defined

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Foorbe's • September 2. 1991

wo "wedend" land where there is cren bend, C. Charles Jowiem, a resired revesty currently
a bit of water down w 18 inches Columbia Pictures vice president, federal wedando palicy.
haloo the ground for seven consecu- Peggy Reigle moved to Cambridge, la Hampton, Van,
cive days of the growing scason. Un- in Dorchester County, to raise flow. Thomas Nelson Community
der the August proposal, some of ers and enjoy life. As a retirement lege had made a routine regue
chouc criteria were softened. Most investment the couple had bought a Corps check of a propone
important, the length of time a wet- 138-acre abandoned farm that they site for its new sports
land must be saturated would be in planned to subdivide into 10-acre result was a finding of
created to 21 consecutive days of the lots. Within months, however, Rei- and "wetlands” at the
growing season.

gle was out of retirement and at war lar findings could, in
One of the areas hardest hit by the with the federal government. regulatory mayhem, threaten
1989 rules was Maryland's Dorches. Reigle's war started after she heard acre Nelson Farms suted

what the new definitions had done to 800-home, 133-acre

an elderly acighbor. The neighbor Woods subdivision,
Federal Manual for had been informed that under the Hampton Roads Cender
Wentifying and Delineating new rules, her property was classified and a 600-home Hampton
Jurisdictional Wetlands as nontidal wedands and therefore subdivision. As Hampran

could not be developed. The neigh. James Bason told the local
bor had been counting on proceeds Praw, “It's very scary. W's a
from land sales to build a new home. able it could halt all day

In May 1990 Peggy Reigle wrote the city of Hampton.”
an angry letter to President Bush This quagmire trapped man
(one of thousands like it received by of the most obvious candidmens
the White House). When local pa- permits, such as Richard Matamala
pers reprinted the letter, Reigle was This retired state trooper
besieged by calls from others like her, more had invested $16.
outraged by the new policy. She building lot in the midst.
formed the Pairness to Land Owners oped residencial arca in
Committee; in two weeks it signed Dorchester County only
up some 2,000 citizens and now the.0.7-acre lot was “ne
boasts a membership of over 6,000 lands." Although he wa
Marylanders and 2,500 from other only an eighth of an ack

states. Ios credo: “We will not accept retirement home, the US Moda & The Is manual

the government's caking our land Wildlife Service recommended tonithe samp?

without just compensation." The al of his application.
grass-roots backlash against federal Eventually the Corps isme :

wedands imperialism was under way. permit to fill the sliver o fund, bur! ter County (sce map, p. 105). Previ. And soon Congress was paying heed. only if “the permittec she minione austy momc 275,000 acres of private- In January and February Repre- at a 2:1 ratio for wedan om by by owned land in Maryland had been sentative John LaFalcc (D-N.Y.), constructing 0.25 acres dowed as wedand. With the 1989 chairman of the House Small Busio nontidal wedands." In of mean, the figure topped 1 million ness Committee, held hearings. Adamski had to find somas scree. This meant that the govern- Builders, realtors, national and local to sell him a permanent mama muddenly sanctioned 740,000 officials and developers shared stories on twice as much land. Noc kalicional acres against filling or oth- about the quagmire of wetlands reg. Adamski remains in limbo a dionurbance, unless specifically ulations. The town supervisor of I walked through the wecome permitted by the Army Corps of En- Wheatfield, in Niagara County, mostly wooded “wetlands pineer, with the EPA and FWs exercis. N.Y., told LaPalce that if the Corps (the wettest season), my ing virtual veto power. Under the issued permits based on the 1989 emerged pristincly unmud new proposal, the amount of wet- manual, “arcas like Niagara County As the outrage over his hila-handlando would still increasc, but by less will be deprived of approximately cd policies mounted, Reilly had mo than dhe 740,000 acres. The 1989 65% of the remaining developmental beat a strategic retreat. On Star. 7 he manual, however, remains the law of property." David Brody, attorney for admitted to the prestigious Amerithe land. The revisions would be the Niagara Frontier Builders Associ- can Farmland Trust: “We weddenly unlikely to go into effect before early ation, said the manual's implementa- found ourselves in the cenour of i 1991. The permitting process itself tion, along with other problems, maelstrom. Everywhere I traveled I remains a bureaucratic swamp. would result in “a 35% reduction in heard a local wetlands horror Story

This outraged Margaret Ann Rei- new home starts in Niagara and Eric not just from farmers, but from de gle, who had retired from her job as countics in 1991." After the hearings velopers and respected political leadvice president of finance at New LaFalce sent President Bush a letterers.” He suggested that the entire York's Daily News. With her hus- “to alert (him) to the regulatory process had gotten out of tound.

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Forbes · September 2, 1991

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But cell that to William Elen, 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 forestod 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 Joncs 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 combinacion 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 ploos all designed to attract gecse, 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 mil. lion finc. The plea allowed Jones to avoid a costly and debilitating trial, Conservationist Bill Ellen and posibly cven a jail term and the Glity as charged: too many goose dropplugs. lous of his trading license. However, no auch deal was afforded Bill Ellen, himself a well-known conservationist was implemented, all that fecal mate- of 27 to 33 months, but Judge Smal. who, with his wife, runs a rescue/re. rial (from the ducks and geese) was kin sentenced Bill Ellen to six months hab mission for injured wildlife and geared to be discharged right into the in jail and four months of home waterfowl.

wetlands, whereas now it is actually detention. How could Ellen be prosecuted for designed to go through like a treat- These examples of federal wetlands converting land that was so dry water- ment system through the wedands. policy as practiced in the early years of spraying had to be used as a dust So that would have been a negative the Bush Administration are a case of suppressant during bulldozing into impact, a water quality impact." In a bureaucracy run amok. In fact, there large nesting ponds for waterfowl? other words, the bird droppings, in- is little law today that provides ducThut question disturbed trial judge stead of staying in one place,

would be process federal jurisdiction over wetFrederic Smalkin at the U.S. District spread over a wider arca.

lands. There is only the Food Security Court in Baltimore, and the answer he To which Judge Smalkin respond Act of 1985, which asserts jurisdiction got was bizarre.

ed incredulously: “Are you saying over those farmlands under federal Prosecution witness Charles that there is pollution from ducks, subsidy programs. But farmers may Rhodes, one of the EPA's top scientists from having waterfowl on a pond, remove that jurisdiction by taking on wedands, said that even though that that pollutes the water?" Incredi- their land out of the programs. the forested “wedlands" had been bly, a jury convicted Ellen on five Otherwise, the wedands program is replaced by new ponds, the ecology counts of filling wedands. But U.S. very largely a contrivance of federal was supposedly worse off.

Attorney Breckinridge Willcox said burcaucrats, sometimes working with Why? The problem was bird shit. Ellen's conviction sends “a clear mes- friendly courts to expand Section 404 “The sanctuary pond is designed to sage that cnvironmental criminals of the Clean Water Act. Yet this act have a large concentration of water- will, in fact, go to jail.” The prosecu- makes no mention of “wetlands" and fowl, and before the restoration plan tion asked the court for a prison term is designed to regulate only direct

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Forbes · September 2, 1991

"to regulate commerce ... among tion of the Clean Water Ace?
the several states." To assert this pow- "When he (the so-called expert)
er on isolated and local wedlands, the was forced to answer yes, I looked at
EPA and the Army Corps of Engineers the jury and I know we were on our
engaged in such creative flights of way!" Arens said. “But what really
fancy as declaring ducks and gecse convinced the jury the government
"interstate waterfowl.” This led to had no casc was when it discovered
what some call the "glancing goose that the government prosecutors had
test," which determines that an area is no law!"
a wetland if an interstate goose pauses

“While the jury was deliberating, to consider it.

they kept sending out to the judge for In a brutal display of naked power, copies of the 'wetlands law. When the EPA and the Department of the the judge sent them federal regula. Army plunged ahead in December in cions, they sent back and asked for the their "Wetlands Enforcement Initia- law. When the judge sent them the tive," designed to bring 24 high- Clean Water Act, and said this was all visibility defendants like Paul Tudor the law he had to give them, they (the Jones to justice. The Dec. 12, 1990 jury) decided the government had no memorandum asked all regional ad- case because it had no jurisdiction." ministrators to produce a "cluster" of More setbacks awaited the powernew cases to be announced in an April grabbing bureaucrats. In January “first 'wave' of publicity ... to pro- 1989 then Assistant U.S. Attorney vide an early deterrent to potential General Stephen Markman had a violations which might otherwise oc- memorandum prepared on a big wet. cur during the 1991 spring and sum- lands case the Justice Department was mer construction season.”

prosecuting. The

memorandum But on Apr. 19 a high-visibility case demonstrated, with dozens of citablew up in the government's face. dions, the flimsiness of the goverJames Allen and Mary Ann Moseley, ment's wetlands policies, concluding: Missouri farmers, had built a perime- “The Corps and the era appear to ter levee to keep their Mississippi have circumvented the Constitucion's Basin farm from flooding. The gov- requirements ... and the federal disernment declared the area to be wet- trict and circuit courts have not corlands of the United States, sued the rected them." The courts have apparMoseleys for violations of the Clean endly been paying attention. Water Act and sought fines of And so the battle has been joined. $25,000 a day for as long as the On the one hand are the wildlife-atviolation was in effect.

any-price people. On the other, pcodurnping into and pollution of the But the Moseleys are members of ple who think that environmental polnacion's "navigable waters," rivers, the American Agriculture Movement, icy ought not override property harbons, canals, etc.

a progressive farm organization that rights. In a 1975 decision (Natural Re- has joined the mainstream farm The environmental extremists have sources Defense Council v. groups in opposing the extension of made their intentions clear. In 1975 Callaway), a Washington, D.C. dis- the definition of “wetlands” and sup- poet Gary Snyder won the Pulitzer trict judge ruled that federal jurisdic- porting the Private Property Rights Prize for his radical call for an “uldcion applied beyond navigable waters Act. sam's Fayetteville, Ark. lawyer, mate democracy (in which) planos to any wetlands that might remotely John Arens, has a record of beating and animals are also people." He feed into such rivers and harbors. But the government in court-and he did wrote that they should "be given a even that did not cover "isolated wet- it again.

place and a voice in the political dislands" with no connection to "navi- When Arens was not allowed to cussions of the humans. ... What we gable waters"-like the puddles in bring in his own "expert witnesses," must find a way to do ... is incorpoyour backyard after a heavy rain. Nev- he minced up the government "ex- rate the other people ... into the ertheless, since 1975, jurisdiction has perts" by demonstrating the capri- councils of government." been expanded entirely by fiat and cious nature of the so-called wetlands A few years later, in 1980, a leading court interpretation to cover that def- law. He asked onc Epa expert if it were ecologist, Joseph Petulla, said, “The inicion in the EPA manual-water 18 not true that, were he to play baseball Marine Mammal Protection Act inches down.

on a diamond built on hydric soils and (and) the Endangered Species Act The fig leaf for this judicial and went into the batter's box and scuffed (embody) the legal idea that a listed executive imperialism is Article 1, Sec- his cleats, and then knocked the re- nonhuman resident of the U.S. is cion 8, paragraph 3, of the Constitu- sulting dirt off them, back onto the guaranteed, in a special sense, life and tion, which gives Congress the right field, he would be in technical viola liberty."

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Of course, the Constitution says the protection of property rights; says: “Ecological devastation ... innothing about the rights of trees, says: We should adopt a policy of no variably accompanies too much govsnakes, owls and fish. Which may be net loss of private property." Since ernment ownership of land. You why, back in 1973, Reilly's task force the federal government already owns don't have to look just to Eastern essentially called for the repeal of the some 40% of U.S. land, Symms ar Europe for confirmation. You need takings clause of the Fifth Amend- gues that it ought to be willing to only examine the condition of most of ment: “Many (judicial) precedents swap somc of its 730 million acres in the Bureau of Land Management inare anachronistic now that land is order to obtain privately owned land ventory of properties, or remember coming to be regarded as a basic that is environmentally sensitive. If, what the Park Service allowed to hapnatural resource to be protected and say, the National Park Service wants pen at Yellowstonc." conserved. ... It is time that the U.S. 50,000 acres to provide more protec. But the zealots won't give up. On Supreme Court re-examinc its prece- tion for Shenandoah National Park, Oct. I thc Era's regional office in dents that seem to require a balancing it can ask the Forest Service or Bu- Chicago awarded a grant of $50,000 of public benefit against land value reau of Land Management to sell to over three years to the Sierra Club's loss ... and declare that, when the private citizens a like amount to fi- local “Swamp Squad,” which protection of natural, cultural or acs. nance the acquisition. Such a policy amounts to an unofficial policing of chetic resources or the assurance of of no net gain in federal lands was the environment. These vigilantes spy orderly development are involved, a introduced this summer in the on developers and other land and mere loss in land value is no justifica. House in legislation drafted by Rep. property owners to report potential tion for invalidating the regulation of resentative Bill Brewster, Democrat wetland violations. The EPA press reland use italics added).”. from Oklahoma.

lease quoted Dale Bryson, the region“A mere loss in land value ... "In Do we really want the federal gov. al director of its water division: "This that “mere” resides a philosophy that ernment owning even more of the grant will allow them to continue questions the values of private proper- country, whether through outright their valuable work in a more vigor. ty and individual freedom. But after purchase or through limitations on ous way." years of having things pretty much land use? Free-market environmen- The Senate has served notice that it their own way,

people who think like talists like R.J. Smith of the Cato thinks some of this "valuable work" Reilly are getting a real fight.

Institute argue that more govern- has already gone too far. By all the Idaho Republican Steve Symms, ment ownership and control would evidence, many of the American peo who leads the fight in Senate for actually harm the environment. ple would agree.

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