Hon. TERRILL CLOVE, MAYOR, c/o Ralph McClure, Manager, City of Washington, Washington, UT. 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, 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 capac ity 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, IRIS SORENSON, Councilman. THE UNIVERSITY OF UTAH, Salt Lake City, UT, July 10, 1995. Hon. ORRIN G. HATCH, Chairman, Judiciary Committee, Washington, DC. DEAR CHAIRMAN HATCH: We respectfully submit the following comments to be included in the record of the field hearing on private property rights held in Salt Lake City on Monday, July 3, 1995. (These comments reflect the professional views of the undersigned faculty, and not a position of the University of Utah College of Law.) As a preliminary matter, we would like to request that future field hearings in Salt Lake City be announced publicly sufficiently in advance that we and other members of the public may submit timely requests to testify. We learned of the hearing informally, from a colleague in Washington D.C., just one week in advance. One of us, Associate Dean John Martinez, who has published extensively and who teaches a seminar in the area of property rights, promptly called your office in Washington to request an opportunity to testify at the hearing, but was told that the witness list had already been closed. It is unfortunate that we and other members of the public who may have been able to contribute informed and diverse viewpoints to the Committee were not able to do so due to inadequate public notice. From a substantive perspective, we believe that federal legislation on property rights is unnecessary and unwise. The due process, equal protection, contracts and just compensation clauses of the Constitution, along with over a century of judicial interpretation and implementation, properly reflect the careful balance that must be struck between the rights of private property owners to use their property responsibly and the rights and needs of the general public to be protected against dangerous or inappropriate uses of that property. As the Supreme Court and the lower courts have recognized consistently, this balance defies rigid formulae, but instead is best determined case-by-case based on the specific facts at issue. In individual cases, the courts properly have balanced such factors as the use of the property and the extent of diminution of property value against the legitimate need for and validity of the public regulation in question. Although the Supreme Court has addressed the takings issue many times over the past century, it has rejected repeatedly the notion that this inquiry can be reduced to precise quantitative or other fixed methods of analysis. We agree that federal agencies should carefully balance the competing public and private considerations when their actions affect private property, but believe that there are other, more appropriate means to achieve this end. In his article examining state statutes similar to the proposed federal bill, Statutes Enacting Takings Law: Flying in the Face of Uncertainty, 26 Urban Lawyer 290 (1994), Professor Martinez carefully considered the problems that need to be considered in this analysis, including public benefits, private benefits, public costs, private costs, and where feasible, a balancing of those public versus private costs and benefits. However, because federal agencies already conduct such analyses routinely pursuant to Executive Order, federal legislation is not needed to achieve this result. The complexity of the judgments to be made and the importance of the public and private interests affected thus make it inappropriate to attempt to address the property rights issue in an inflexible way through legislation, as proposed in S. 605. Because we do not believe that it is wise to legislate in this area, we provide only a few general observations about the bill rather than a detailed analysis: Section 204 defines the circumstances under which compensation is required due to federal agency actions. Compensation is required if any one of the enumerated criteria is met. Several of the criteria appear to attempt to reduce existing principles of case law to simplistic, fixed formulae. This is inconsistent with the more flexible and we believe more appropriate case-specific approach adopted by the courts, which is more responsive to the wide variety of circumstances in which takings issues arise. The most drastic change in existing takings law, however, is section 204(a)(2)(D), which would require automatic compensation for any agency action that diminishes property values by a third or more, without any consideration of such factors as the activity affected (single home construction versus hazardous waste site), the location (industrial park versus adjacent to a school), or the nature of public interests at stake (aesthetics versus severe threat to public or environmental health). Rather than carefully balancing private against public rights and interests, the bill thus appears to exalt private property rights over other legitimate rights and interests. (2) Existing takings law recognizes the need for government agencies to vindicate public rights, while holding agencies properly accountable for actions that cross the line between legitimate government regulation and unreasonable or extreme interference with private property rights. Several provisions of S. 605, by contrast, would impede the ability of agencies to serve the public. For example, section 204(f) would require all compensation claims to be paid out of the affected agency's budget (unlike other federal litigation claims, which are paid out of a central liability account in the Department of Justice). Especially when agency budgets are being reduced by efforts to trim the federal budget, officials may be chilled against taking necessary and legitimate actions to protect public health, safety and welfare, with no reasonable assurance that the proper balance will be struck between private and public rights. Where claims are paid, agencies may be left without adequate resources to do the jobs entrusted to them by Congress and the public. Similarly, section 404, which requires all federal agencies to review not just proposed but all existing regulations that may result in takings of private property, is a mammoth task that could cripple other legitimate agency activities in the interim. Again, to the extent that these provisions are designed to protect the rights of some property owners, they appear to do so at the expense of equally legitimate rights and interests of the public at large. (3) Section 404(a) prohibits the promulgation of any agency rule if enforcement could reasonably be construed to require an uncompensated taking as defined in the bill. Either we do not understand how this requirement will work, or it will have an even greater chilling effect on legitimate agency activities designed to safeguard the public health and welfare. Under the bill, all agency actions that meet the criteria in section 204(a) will require compensation. The term "taking" is defined in section 203(7) to mean actions that require compensation under the Fifth Amendment or the bill. Thus, the term "uncompensated taking" in section 404(a) is either a null set, or consists of all agency actions that do not meet the criteria in section 204(a), in which case it would appear to prohibit all other agency regulations. Moreover, this provision appears to prohibit the issuance of an otherwise legitimate rule of nationwide applicability if it could be construed to cause an uncompensated taking in even a single instance. (4) The bill appears to make the federal government financially liable for the actions of state and local regulatory agencies. As noted above, section 204(b) immunizes state agencies from liability for takings in connection with the implementation of federal regulatory programs. But since such actions are compensable under section 204 of the bill, presumably this liability would be borne by the federal government. Yet most federal regulatory programs parallel similar state and local programs, many of which predate or impose stricter or different requirements than those included in federal law. As a practical matter, in many cases it will be difficult or impossible to distinguish between the regulatory impacts of state actions taken pursuant to federal law and those that would be taken anyway under state law. (The definition of "state agency" in section 203(6) of the bill requires only that the action in question be "directly related to" the federal program, not that it be the exclusive source of authority.) Thus, the bill probably will impose liability on the federal government for actions that would be taken anyway under state and local law. This raises serious budgetary questions, especially when the federal government is facing severe fiscal constraints. Finally, we are concerned that the bill does not state the source of constitutional authority purporting to be exercised. (Unlike other provisions of the Constitution, such as the Fourteenth Amendment, the Fifth Amendment includes no express delegation of legislative implementing authority to Congress.) If Congress chooses to legislate in such an unprecedented area, it should articulate the source of authority for doing so. We appreciate your consideration of these brief comments as you consider S. 605 and other proposed legislation on private property rights. Because we believe that legislation in this area is not appropriate, we urge you to proceed with extreme caution. Very truly yours, JOHN MARTINEZ, Professor of Law, Associate Dean for ROBERT B. KEITER, Director, Center for Environmental and Energy Law. SUSAN R. POULTER, Professor of Law. |