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The Federal Wetlands War, Part 1

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Part 1 | Part 2 | Part 3 [To be posted]

Since the 1980s, federal wetlands crackdowns have been one of the most brazen violations of American property rights. Federal agents have continually sought to play trump cards that effectively turned owners into serfs of federal bureaucracies. And despite a recent Supreme Court ruling vindicating landowners, the battle will continue.

Wetlands serve a valuable environmental function: providing a habitat for many species of fish and wildlife, storing floodwaters, and acting as a natural filter to improve water quality and help moderate local temperature and precipitation. Wetlands are also an important breeding ground for waterfowl. Unfortunately, U.S. Army Corps of Engineers projects have destroyed much of the nation’s wetlands over the last 90 years, and lavish agricultural subsidies have encouraged farmers to plow under millions of additional acres of wetlands. Although the nation has lost much of its wetlands, there is no evidence that the nation faces an imminent shortage of swampland. In fact, a 1991 survey by the Fish and Wildlife Service estimated that “from the late 1970s until the mid-1980s … the U.S. actually gained 500,000 acres of wetlands a year.”

From the early days of the republic, the U.S. government has claimed jurisdiction over all navigable waters in the nation. In 1972, Congress passed the Clean Water Act to, among other things, restrict the pollution of navigable waters. The Army Corps of Engineers received the power to approve or deny building permits on areas alleged to be wetlands, and Congress gave the EPA the power to veto Army Corps permits. In 1975, a federal judge revealed that the Clean Water Act also applied to wetlands that were adjacent to navigable waters.

In 1988, presidential candidate George H.W. Bush declared that “all existing wetlands, no matter how small, should be preserved” and promised “no net loss” of wetlands if elected president. His promise was a go-ahead signal for federal regulators to greatly expand the definition of wetlands. On January 21, 1989, the EPA and the Army Corps of Engineers publicly released the Federal Manual for Identifying and Delineating Jurisdictional Wetlands, which contained a new definition of wetlands that repudiated the numerous conflicting preceding definitions of wetlands promulgated by federal agencies. The new manual was written in secret; officials of several federal agencies met behind closed doors and effectively decided among themselves to claim jurisdiction over the property of hundreds of thousands of American landowners. This was a stark violation of the federal Administrative Procedures Act, which requires public notice and comment before a major federal regulation acquires the force of law. Under the 1989 definition, land that was dry 350 days a year could be classified as a wetland. Even land that had no water on the surface could be classified as a “federal jurisdictional wetland.” Fairness to Land Owners, a Maryland advocacy group, estimated that the new definition magically increased the amount of wetlands in the U.S. from roughly 100 million acres to 200 million acres. The vast majority of the new “paper wetlands” were owned by private citizens. Robert Pierce, an Army Corps of Engineers official who helped to write the 1989 manual, later observed, “Ecologically speaking, the term ‘wetland’ has no meaning: natural systems exist on a hydrologic gradient from ocean to desert. Somewhere in the middle are what society calls wetlands. For regulatory purposes, a wetland is whatever we decide it is. The type of natural systems that have been defined as wetlands has changed virtually every year for the last decade.”

Federal bureaucrats enforced the new definition with a vengeance:

-  Ronald Angelocci dumped several truckloads of dirt in the backyard of his Michigan home largely because a family member had acute asthma and allergies that were severely aggravated by the plants growing in the backyard. The Army Corps of Engineers decided to make an example of Angelocci, launched a full-court offensive, and had him jailed for violating the Clean Water Act.

-  Ocie Mills, a Florida builder, and his son were sent to prison for two years for placing clean sand on a quarter-acre lot he owned.

-  Rep. James Hayes observed, “In Nevada, [housing] developments in the midst of cactus and parched earth are now being classified as ‘wetlands’ because standing water can occur for seven days in a hole dug for a foundation. The fact that such a rain occurs very rarely no longer seems relevant in what was once considered a desert state, but which is now ‘The Great Wetlands State.’”

-  A small Oregon school district was hit by a federal lawsuit for placing clean fill to build a baseball-soccer field for its students, and had to spend thousands of dollars to remove the fill.

“Alice in Wonderland”

Congress specified in the Clean Water Act that normal farming practices and operations should be exempt from federal controls. But the Army Corps of Engineers evaded that limit on its power by issuing a “clarification” of federal law that announced that, from the Corps’s perspective, cranberries, apples, blueberries, hay, and alfalfa are not agricultural commodities — and thus that those farmers were subject to the Corps’s control.

A Louisiana family wanted to use 80 acres of land to build a crawfish pond and spent $35,000 to get the federal permits. But at the last minute, the EPA denied permission because “[high] quality habitats such as these provide food, shelter, nesting, and spawning areas to a wide variety of game and non-game fish and wildlife species including the red swamp crawfish.” Rep. Billy Tauzin of Louisiana denounced the EPA for “denying a permit to raise crawfish in an area they say should be used to raise crawfish. That is Alice in Wonderland reasoning there.” (EPA officials may have been so accustomed to denying permits that they did not even read the application.) Federal officials in Arkansas prohibited farmers from constructing levees for rice production — even though it would increase the amount of wetlands.

Rep. Bill Brewster of Oklahoma complained of receiving a deluge of protests from Oklahoma residents over “the Army Corps of Engineers’ and the EPA’s intimidation of farmers and ranchers. Many private property owners who make their living off the land, and have for generations, are being told that they can no longer engage in normal ranching or farming activities. They have lost the ability to use their land to support their families.” Former Justice Department attorney William Laffer observed, “Any time the Army Corps or EPA thinks a parcel of land is beneficial to wildlife, they arbitrarily apply the wetlands definition to prohibit the owner from using the land.”

The U.S. government sent Bill Ellen, a Vietnam veteran and marine engineer, to prison for building duck ponds as part of a wildlife sanctuary on Maryland’s Eastern Shore. Ellen began the construction of the wildlife sanctuary in 1988 after getting 38 government permits and having been advised by Army Corps of Engineers officials that the land was not classified as wetlands. In February 1989, armed with a new definition of wetlands, an Army Corps official reversed his position and arrived on the scene with a cease-and-desist order. Although Ellen ceased construction within 48 hours, the Army Corps still prosecuted him. Though environmental regulators tend to deify ducks, the Army Corps in this case claimed that Ellen was a polluter, in part because the ponds he constructed attracted ducks — which generated waterfowl fecal matter.

Though Ellen had created at least four times as many wetlands as he may have impaired, the U.S. government fought tooth and nail to send him to prison; a federal prosecutor demanded that “those who commit criminal environmental insults [should] come to learn and appreciate the inside of a federal correctional facility.” After the Army Corps had Ellen arrested, they dynamited his duck ponds to create a 400-yard channel connecting the land to a body of salt water — thereby destroying the environmental benefits from his project.

Reasonable birds

The EPA and the Army Corps argue in court that their wetlands authority extends to almost every moist patch of land in the country larger than a few square feet. In April 1992, federal judge Daniel Manion struck down part of the EPA’s expansive definition of wetlands. The EPA had imposed a $50,000 penalty on Hoffman Homes Inc. for placing excavated dirt on “navigable waters” — eight-tenths of an acre in an isolated corner of its development near Chicago. Judge Manion noted, “The EPA claims jurisdiction over the intrastate wetland solely on the ground that migratory birds could, potentially, use the wetland as a place to feed, or nest or as a stopover on the way to the Gulf States for the winter months.” (This standard is known as “the glancing geese” test. If passing geese glance down and consider stopping at a water hole, and the geese are on a flight that crosses state lines, then that water hole and the surrounding land become involved in interstate commerce and thus fall under federal jurisdiction.) Manion noted, “In fact, there is not even any evidence that migratory birds, or any other wildlife, actually used [the area] for any purpose.” The government appealed the decision, and the case was remanded to the same panel of Seventh Circuit judges. In the second decision, the judges narrowed the scope of their ruling, finding for Hoffman Homes but allowing the EPA to retain its “glancing geese” test. The court once again admonished the government, “After April showers not every temporary wet spot necessarily becomes subject to government control.”

Unfortunately, the court’s pretty words had no effect as force of law, so EPA officials continued claiming jurisdiction over areas on the basis of passing ducks. Lawyer Virginia Albrecht noted that the EPA invented its “glancing geese” test (referred to by the agency as the “reasonable bird” rule) in 1985. Although the rule was never officially announced as federal law, EPA officials applied the bird rule in thousands of cases. Because the EPA never formally announced the rule, a federal court in the Fourth Circuit struck it down in 1989. The EPA has repeatedly promised to formally promulgate the regulation, but it has never done so. It is still using the “glancing geese” test to claim jurisdiction over private land in most of the United States.

The 1989 wetlands regulations devastated the construction industry in many areas. In the New England and Seattle regions, the Army Corps of Engineers approved only 8 percent of applications for construction in late 1990 and early 1991 because of concerns of possible wetlands violations. In Chatham County, Georgia, near Savannah, the Army Corps did not issue a single construction permit between early 1989 and early 1991, and EPA officials ordered developers to tear down new houses after the agency decided that the Army Corps had mistakenly classified land as non-wetlands several years earlier. Hampton, Virginia, mayor James Eason said of the Corps’s sweeping findings of wetlands in his area, “It’s conceivable it could halt all development in the city of Hampton.” Bernard Goode, former chief regulatory official of the Army Corps, publicly complained that as a result of the 1989 manual, “the regulated sector was on the verge of anarchy.”

Wetlands classifications have almost totally nullified property value. A New Jersey judge ruled that the classification of a 240-acre tract of land near East Rutherford as wetlands officially lowered its assessed value from $20 million to only $1 million. The Southeast Planning District of Virginia estimated that the revised definition of wetlands could cut property values by $50 billion in its area. Former White House environmental analyst Jonathan Tolman estimated, on the basis of one study of the effect of wetlands designations on property values, that wetlands rulings may cost local governments nationwide more than $6 billion in lost property taxes a year.

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    James Bovard serves as policy advisor to The Future of Freedom Foundation. He has written for the New York Times, The Wall Street Journal, The Washington Post, New Republic, Reader's Digest, Playboy, American Spectator, Investors Business Daily, and many other publications. He is the author of a new e-book memoir, Public Policy Hooligan. His other books include: Attention Deficit Democracy (2006); The Bush Betrayal (2004); Terrorism and Tyranny (2003); Feeling Your Pain (2000); Freedom in Chains (1999); Shakedown (1995); Lost Rights (1994); The Fair Trade Fraud (1991); and The Farm Fiasco (1989). He was the 1995 co-recipient of the Thomas Szasz Award for Civil Liberties work, awarded by the Center for Independent Thought, and the recipient of the 1996 Freedom Fund Award from the Firearms Civil Rights Defense Fund of the National Rifle Association. His book Lost Rights received the Mencken Award as Book of the Year from the Free Press Association. His Terrorism and Tyranny won Laissez Faire Book's Lysander Spooner award for the Best Book on Liberty in 2003. Read his blog. Send him email.