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Explore Freedom » The
Federal Wetlands War, Part 2

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The
Federal Wetlands War, Part 2
by James
Bovard December 17, 2012

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

In August 1993, the Clinton administration announced a new policy that
tightened the federal noose over private lands. The White House Office on
Environmental Policy (echoing a 1988 George H.W. Bush campaign promise)
proclaimed a national goal of no net loss of wetlands, creating a presumption
that any citizen whose land was labeled “wet” by a federal bureaucrat lost his
right to use his land. Previous wetlands definitions specifically prohibited
only activities such as dumping dirt on so-called wetlands or otherwise building
on them.

The Clinton administration announced that it was banning any activities on
so-called wetlands that “have environmental effects of concern.” A federal
attorney told an appeals court that, under the new policy, the Army Corps “could
require a permit to ride a bicycle across a wetland” — though the Corps was
careful not to outrage the cycling lobby.  A White House press release
suggested that “Congress should amend the Clean Water Act to make it consistent
with the agencies’ rulemaking.” It was unusual for federal officials to declare
openly that Congress should be a rubber stamp; usually, agencies expand their
own power and assume either that no one in Congress will notice or that no one
on the Hill will have the gumption to stop them.

Federal agencies prosecuted private citizens on the basis of laws that had
never been written, of memos that had never been made public, and of assumptions
that could not stand the light of day. Nancy Cline, a mother of five young
children, testified to Congress in 1995 that federal bureaucrats had hounded her
and her husband for years. Her husband bought 350 acres of farmland in Sonoma
County, California, to establish a winery. The fact that the land had been
farmed for more than half a century did not stop the Army Corps from
reclassifying it as a wetland. The Clines were threatened with fines of $25,000
per day and imprisonment up to one year if they continued farming.

When the Clines refused to bow to the Army Corps’s demands, the feds upped
the ante and launched a criminal investigation. As Mrs. Cline told the House
Judiciary Committee,

In January 1994, the FBI showed up. Obviously the
Corps had no desire to discuss or resolve this issue. We were told to hire a
criminal attorney…. Their issue was power and control. Their issue was an edict
from the U.S. Attorney General demanding more criminal environmental convictions
in the Ninth Circuit apparently short of the prescribed quotas.

The FBI and EPA interrogated neighbors,
acquaintances, and strangers. They asked about our religion, whether we were
intelligent, did we have tempers. They asked how we treat our children.

Our property was surveyed by military Blackhawk
helicopters. Their cars monitored our home and our children’s school. They
accused Fred of paying neighbors to lie. The FBI actually told one terrified
neighbor that this investigation was top secret, with national-security
implications. The community reeled, as did we.

We spent thousands of additional dollars to hire
more attorneys. The Justice Department told our attorneys that unless we would
plead guilty and surrender our land they would seek a criminal indictment of
both Fred and me. According to one government attorney, I was to be included
because I had written a letter to the editor of a local paper, in their opinion
“publicly undermining the authority of the Army Corps.”

In December 1994, shortly after Republicans had recaptured Congress in part
because of a “Contract with America” that called for greater respect for
private-property rights, a Justice Department attorney informed the Clines’
attorney that the government had chosen not to proceed with criminal
charges.

Other targets

Grace Heck, a 77-year old woman from Farmingdale, New Jersey, also submitted
testimony to the House Judiciary Committee for its 1995 hearing on wetlands
abuses. She related how she and her 82- year-old husband — who had had eight
heart attacks — had been devastated by the Army Corps of Engineers. The Hecks
owned 25 acres of land which a local government had approved for building a
45-house subdivision. But after the Army Corps expanded the definition of
“wetlands” in 1987, the project was blocked. The Army Corps claimed that the
hardwood forest was actually a wetland. Moreover, the U.S. Fish and Wildlife
Service protested that the project should not be approved because a federally
protected plant species was “within five miles of the proposed project
site.”

The land was practically the only asset the Hecks possessed; after the Army
Corps’s ruling, it became practically worthless. Instead of selling their
property for $2 million, the Hecks were driven into near-destitution — forced to
move into their daughter’s small house, no longer able to afford their family
doctor, and not even able to afford hearing aids. Heck bitterly complained,

We have never asked our government for anything.
We were proud to be Americans. Now we are ashamed of our country and a
government that allows the bureaucrats to steal from its citizens under the
false pretense that it is for the public good.

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. Mills had been a vocal
critic of the EPA and was targeted for punishment by prosecutors and
bureaucrats. As the Washington Legal Foundation noted,

The EPA did not file any civil- enforcement action and instead sought
criminal indictments. If EPA’s goal was truly environmental protection, EPA
would have filed a civil suit ordering the removal of the so-called pollutant.
Instead, the sand remained on the property over two years while Mr. Mills and
his son were in prison.

After Mills was released from the pen, he filed suit to have his felony
conviction overturned. Federal Judge Roger Vinson, ruling on Mills’s suit in
1993, denounced the federal government’s wetlands interpretations as a
“regulatory hydra … worthy of Alice in Wonderland.” Vinson concluded, “A
jurisprudence which allows Congress to impliedly delegate its criminal lawmaking
authority to a regulatory agency such as the Army Corps — so long as the
Congress provides an ‘intelligible principle’ to guide that agency — is enough
to make any judge pause and question what has happened.” Vinson denounced a
bureaucratic interpretation that “a landowner who places clean fill dirt on a
plot of subdivided dry land may be imprisoned for the statutory felony offense
of discharging pollutants into the navigable waters of the United States.”

Gaston and Monique Roberge bought several acres of undeveloped land in
Orchard Beach, Maine, in 1964. In 1976, they allowed the city government to dump
some clean fill onto part of their lot. In 1986, a developer offered the couple
$440,000 for their land — which the two of them considered their personal
retirement fund. But the Army Corps announced that the land had miraculously
become a wetland — largely because they had allowed the local government to
place the clean dirt on the land. After Gaston Roberge publicly complained about
what he considered an unfair decision, Army Corps field officer Jay Clement
wrote a memo to his superiors stating, “Roberge would be a good one to squash
and set an example.” The Roberges fought the feds in court, and the government
paid the couple more than $300,000 in 1994 to settle their lawsuit alleging that
the U.S. had “effectively and unjustifiably grabbed the property.”

Louise and Frederic Williams, saw their Little Compton, Rhode Island,
property plummet in value by almost 90 percent — from $260,000 to less than
$30,000 after federal agents declared the land a wetland. The Williamses, who in
1988 had started construction on a new home on the five-acre plot, were ordered
by state environmental officials to tear down the partly built structure, and,
at their own expense, follow a precise 13-point property-restoration plan. Mrs.
Williams complained, “Not only did we have to plant what they dictated, but we
had to make sure the trees were alive and well when they inspected them the next
year.”

No plot too small

Even the smallest amount of alleged wetland can be sufficient to allow
federal bureaucrats to seize control and paralyze owners. John Piazza, president
of a construction company, received a permit from his local government to build
a mini-storage facility on a seven-acre tract in Mount Vernon, Washington. But a
federal agent claimed he had found three small wet areas on the land. Piazza
redesigned his facility so that it would affect only 0.18 of an acre of wetland
and resubmitted his proposal to the Army Corps. While Piazza’s revised
application was gathering dust, the federal government redefined “wetlands” and,
under the new   definition, the mini-storage project should have
affected only 0.089 of an acre of wetland. Yet federal enforcers announced that
Piazza would have to contribute $25,000 to a federal fund to buy wetlands
elsewhere before he could build.

The Army Corps and the EPA were imposing controls over sections of a
development as small as 26 square feet — roughly half the size of a Ping-Pong
table. One Rhode Island town was forced to wait for almost two years to get
federal permission to do mosquito-control work on 0.009 acres of wetlands. When
federal bureaucrats assert control over a Ping-Pong-sized square in a plot of
land, they can effectively prohibit the owner from building on a much greater
portion of his property. And the legal costs of getting government permission to
build on or near suspected wetlands can easily exceed $50,000 — a prohibitive
cost for most individual landowners.

At the same time that federal officials were conducting vendettas against
private citizens, a 1994 Interior Department report conceded that the federal
government was the main culprit in the destruction of the nation’s wetlands.
(The report had been mandated by Congress in 1985; in the time it took to
complete the study, tens of thousands of jobs were lost and many lives were
ruined because of arbitrary, absurd rulings against private landowners.) The
327-page report presented an alphabet soup of federal programs that undermined
the American environment, ranging from the Army Corps of Engineers’ damming to
the federal tax code. The report concluded that federal agricultural policy had
played a key role in rewarding the conversion of more than 10 million acres of
wetlands to cropland since the mid 1950s. The impact of agricultural policies
dwarfed any other single factor in the loss of wetlands. Interior Secretary
Bruce Babbitt declared, “Many of these programs are designed and financed in
ways that violate the most basic principles of economics. Such programs distort
market signals and provide subsidies that have both negative environmental and
economic effects, wasting resources, and adding to the federal deficit.”

Unfortunately, this de facto federal confession did not stop bureaucratic
vendettas against private property rights in the name of wetlands.

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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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