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Explore Freedom » The
Federal Wetlands War, Part 1

FFF Articles

The
Federal Wetlands War, Part 1
by James
Bovard November 17, 2012

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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This post was written by:
James Bovard

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.

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