OCTOBER 13, 1995

Bill Stamp is a fighter

and his evidence is strong. There still is a possibility that he may win this ordeal. If so, his fable would make even Aesop proud. If he fails, so does the Constitution.

MACE THORNTON CHICAGO-If all the stories of Americans facing ruin because of government regulations are merely "anecdotal" - as some assert - Rhode island farmer Bill Stamp is on the verge of becoming the Aesop of all fabled regulatory victims. Stamp's nightmare is far from fable. Because of improper and inconsistent enforcement of wetlands regulations on his dry land, his American dream is slated to crumble around him next Jan. 1.

That is the day on which First Pioneer Farm Credit, of Middleboro, Mass.. says it will end a period of forbearance, opening the door for foreclosure on a loan that would have been paid years ago had government wetlands regulators played by their own rules. Stamp could lose his home, his greenhouse operation and land that has been farmed by his family for three generations.

Bill Stamp has farmed all his life. Because of a rezoning of his farm land in Western Cranston as "industrial" and a higher tax revaluation, farming his land became

Testimony of Brian Bishop

economically impossible. That's when he decided to develop his farm land, sell it and buy new farm land in Exeter and Richmond, an area unencumbered by urban growth.

After securing a state Department of Environmental. Management permit in September. 1986, he started the project. Although the permit indicated that no further wetlands authorization would be required. the Army Corps of Engineers later told Stamp he would need a Section 404 wetlands permit.

Although his land was dry and had been farmed for years. Stamp submitted an application, respond to voluminous Army Corps requests and waited. After waiting more than I and 1/2 years. Stamp, working under authority of the state permit. began developing portions of the project that experts advised him clearly would not require Corps authorization.

Although traditionally agreeing with state permits, the Corps objected to Stamp's work and issued a Cease and Desist Order on Jan. 25. 1988. A paper trail meandered for two more years. Then, in February 1990, Stamp was sued by his own government. he was charged with filling a wetland.

After the suit's filing, the Corps entered negotiations with Stamp and presented a consent decree w, which Stamp signed, believe it to be his only alternative to financial ruin.

As part of the consent decree, the Corps ordered Stamp to apply for an after-the-fact permit for parts of his

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work. After he did, the Corps denied

the permit, on Aug. 27. 1991. That denial required Stamp to undo, a further expense, most of the work he had completed. As outlined in the consent decree. Stamp was required to restore an alleged 1.5-acre wetlands area, which the Corps said his work had affected.

In drawing up restoration plans, consulting wetlands experts from around the country determined that there was never a wetland present within the alleged violation area identified by the Corps. Stamp asked the Corps to reconsider the restoration order. The Corps denied Stamp's request.

On May 29. 1992 Stamp filed a motion with a federal court asking for a resolution. After the Corps objected, the inatter was referred to a U.S. magistrate judge. On Aug. 12. the judge essentially recommended that Stamp's motion be denied. Stamp appealed the ruling. and, again, the Corps, unwilling to admit it was wrong, fought him.

1992

By letter, the court on Oct. 20. 1992 decided a hearing was necessary to resolve the issues raised. Several hearings were held and additional negotiations ensued. Agreement was eventually reached and the prescribed restoration work completed, although Stamp and noted wetlands experts were sure it was unnecessary.

After the restoration. Stamp built an even more convincing case. For more than a year, however, Corps officials refused to consider new. extensive date that proved. hy soil Appendix B(Constituion vs. Corps)

type, that the land in question never should have been delineated as wetlands

Finally, on Oct. 13, 1994. Stamp was notified by the Corps that a small part of his project could continue - a crucial ruling that would allow Stamp to partially develop the site. sell some lots and begin to repay the mountain of debt that had built up as a result of his regulatory appeals. The Corps also finally agreed that much of the area that it had earlier considered wetlands was. in fact, not.

Despite constant requests from Stamp before his restoration work. the Corps only agreed to consider the new information after the restoration was completed. Although the Corps instantly became enlightened once Stamp had completed restoration, officials stubbornly held to their original position that the 1.5-acre violation area was a wetland.

Wetlands experts say that the alleged violation area is identical to adjacent areas the Corps now agrees are not wetlands. The Corps still denies it made a mistake.

Meantime. with the Corps's approval of plans to partially develop the site. Stamp wanted to take all possible steps to avoid any setbacks that might prevent him from paying his financial obligations. he immediately informed state officials of the Corps's decision to let him proceed.

Much to his dismay, he was informed the original permit he obtained from the state in 1986 would not be honored. After nearly a decade of appeals, negotiations, stress and heartache. Stamp now finds himself back at square one.

With only 2 and 1/2 months remaining before foreclosure. Stamp is racing the clock to save his property. Prospects of his completing the task appear dismal.

Testimony of Brian Bishop

If Stamp loses his land, a lawsuit based on the Takings Clause of the Fifth Amendment would be in order. That clause states that private property shall not be taken by the government without just compensation being paid. If Bill Stamp's case is not a taking, the Constitution's ideals are not worth the parchment they are written on.

As Stamp has already discovered. however, lawsuits are expensive and stressful - an not exactly a feasible route for someone who is about to see his lifetime of work vanish because of foreclosure directly resulting from improper regulatory enforcement.

Those who argue against consideration of property rights in regulations assert that the judicial remedy is sufficient to right any wrongs. Clearly, they have never walked in Bill Stamp's shoes, nor have they walked across the dry land that their government asserts is wetlands. They have never had to negotiate with a government agency that is unwilling to admit an error.

Despite the looming deadline, Bill Stamp is still not ready to relinquish his property. Stamp is a fighter and his evidence is strong. There still is a slight possibility that he may win this regulatory ordeal. If he does, his fable would be one that would make even old Aesop proud. If he fails, so does the Constitution and its ideals, which embody everything American, including government for the people.

MAY 31, 1994

• A Massachusetts couple have had to dig up the septic system and the foundation for the house they planned to build in

Little Compton.

By PETER LORD Journal-Bulletin Staff Writer When Louise A. and W. Frederick Williams I bought five acres to build a house amid the pastures and summer cottages of Little Compton six years ago, the concept of wetlands didn't mean inuch to them.

Now, the world "wetlands" conjures nightmares.

Because the state Department of Environmental Management ruled their property was wetlands, the Williamses last week had to rip up their house foundation and leaching field and plant trees so their land will revert to its natural state.

By their account, the Williamses have invested $78,(XX) in their land and $30),(XX) in building materials, paid $20),(XX) to builder and spent more than $60).(XX) on legal fees and all they have to show for it is a muddy hole along West Main Road and a lot of bitterness towards state environmental officials. Believing they have been victimized by arrogant regulators. the Williamses have testified before a state Senate committee, written to every member of the General Assembly and had their story told in a national property-rights publication.

Testimony of Brian Bishop

There is great dispute over the merits of the Williamses case, but their story and others like it have helped prompt a low-key but concerted effort in the General Assembly to weaken Rhode Island's wetlands regulations.

A dozen bills are pending. Two of them would forbid DEM to pursue anonymous tips of illegal actions. One would require that it prepare a report estimating the cost of every environmental decisions. Another would allow construction within 10 feet of pristine wetlands; the limit is now 2000 feet.

Environmentalists have responded by forming a coalition of 27 groups. filing some bills of their own and insisting they will compromise no

more.

Both sides agree that the future of development in Rhode Island is at stake. With much of the state's dry. flat land already developed, builders are increasingly seeking to use wetlands.

Late last week, representatives of both sides of the issue said legislative leaders were telling them that none of the bills would pass. Instead, a special commission will be appointed to review the state's wetlands law and recommend changes to the General Assembly.

Rep. Edward J. Smith, D. Tiverton, chairman of the Joint Committee on the Environment. confirmed Friday that he and other leaders favor a commission. (The general consensus was the General Assembly, not being an authority on

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wetland issues, couldn't do anything on all this," he said.

Now, both sides are jockeying over the commission.

"We're not in favor of a commission at all." says Alison Walsh, issues coordinator at Save the Bay. The other side is not being reasonable. They just don't want regulation. But we're not going to lie down anymore and compromise.

Ross Dagata, director of the Rhode island Builders Association. said his members believe the state has gone too far with its wetlands policies and designated far too much land as wetlands.

Dagata said the builders plan to go ahead with a threatened lawsuit against a new set of wetlands regulations instituted two months ago. At the same time. Dagata said he's anxious to "sit down and work out a better law."

Wetlands are considered importam for sponging up flood waters, recharging underground water supplies and providing wildlife habitat.

The question of just what constitutes a wetland is often subject to debate. While few disagree that streams and ponds are wetlands. biologists also denote as wetlands areas where the soil is soggy. or where certain plants grow that are common to areas that are periodically

wel.

DEM rules substantially limit construction on or near wetlands. For instance, the law forbids huilding within 20 feet of a river or stream. Appendix C(Wetlands rules haunt couple)

but one bill would allow building within 10 feet.

Each year about 32 employees in DEM's Division of Wetlands process 6(K) to 7(X) applications to build near wetlands. Because their rulings can amount to a red light against building, their determinations can spell the difference between big money and a worthless piece of property.

The debate over protecting wetlands has reached the highest levels of state government.

In December, at a hearing on proposed new wetlands regulations. Lt. Gov. Robert A. Weygand and Joseph R. Paolino Jr., who at the time was director of the state

Department of Economic Development. led critics opposed to further tightening of the state's wetlands regulations.

After some minor changes. DEM enacted the new rules.

But when Governor Sundlun fired DEM Director Louise Durfee last March. environmentalist were concerned that he was caving in to builders who thought she was enforcing wetlands laws too strictly. Sundlun quickly pledged that he wouldn't tamper with the new wetlands rules.

DEM changes training The consequences of the debate over wetlands become startlingly real when you step on the lot where the Williamses just ripped out their foundation and septic system.

It appears to be very wet land. The ground is too soggy to cross without boots. Skunk cabbage and curtails grow right up to the edge of the foundation.

As Louise Williams supervised efforts to tear out the last vestiges of a house on her property, she couldn't hold back her anger.

She and her husband. both corporate executives, are used to

Testimony of Brian Bishop

doing things right, she said. They talked to the local building official. hired two local engineers and dealt regularly with DEM on their new septic system.

"DEM keeps saying we should have known there were wetlands." she says. “But I'm not an engineer or an architect or a lawyer or a botanist. That's why we got professional people. This just isn't right. If you own 5 acres in the United States, you have the right to live on it."

Louise Williams insists that DEM's septic system inspectors visited her property several times and should have alerted her to the wetlands.

DEM officials now concede it would have been better if the inspectors sounded the alarm. But septic inspectors at the time focused just on septic systems, and were not trained to look at other problems. DEM now is providing broader training.

Catherine Robinson Hall, the lawyer representing DEM wetlands regulators. says Louise Williams neglected to mention that DEM. early on. advised her to consult DEM for a verification of the location of wetlands on the property. She never did, Hall said.

Dean Albro. chief of DEM's wetlands section. says that if the Williams case was at all marginal, DEM would have reached a compromise. But the land, he said. is saturated. Cattails grew out of the foundation after it was poured, he said.

The Williamses went through protracted hearings and administrative and legal appeals - that led ultimately to rejection by the Rhode Island Supreme Court.

The couple live in a condominium in Concord. Mass.

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Instead of moving to Little Compton, they just visit.

And instead of enjoying the "birds, flowers, gentle breezes and the hope of a peaceful refuge” that they described in one letter. they are left with bitterness.

"What has happened to us is that DEM strung us out until the legal costs are greater than the value of the property." says Mrs Williams. "How does a citizen protect himself from a governinent agency that doesn't tell the truth. has deep pockets funded by the public, an can string you out forever? They are the king, they are the emperor.”

Appendix C(wetlands rules haunt couple)