The Swamp Thing

Do wetlands have to be wet? Not if the government wants to grab them.

Rick Henderson from the April 1991 issue

Last December, the CBS “Sunday Morning” program visited a beautiful marshland in the Louisiana bayou. To protect the marsh from commercial development, the state government had just made it a public wildlife preserve. As cameras panned the hardwoods and swamp grasses, host Charles Kuralt gravely intoned, “Who would want to pave this land? ... Now it’s a gift to ourselves. ”

To lovers of the outdoors, wetlands evoke powerful emotions and seemingly simple policy decisions: preserving nesting grounds for the whooping crane instead of building a shopping mall; protecting a habitat for shellfish rather than letting Jack Nicklaus construct a golf course. But the struggle to preserve wetlands doesn’t always involve such straightforward choices. And not all of the areas threatened by development are as easy to designate as our Louisiana marshes.

Environmental officials have begun to apply a broad and vague new definition to wetlands that adds to the nation’s wetlands inventory property that would hardly qualify as swamps, marshes, or bogs: most of the eastern United States and perhaps as much as 40 percent of drought-stricken California. If strictly followed, the new definition will make millions of acres of private property unusable and require huge tax-dollar payouts to compensate property owners.

Consider the following examples, all deemed “wetlands” under the new policy:

• A North Dakota corn field where pools of water collect for a week each year during normal spring run-off.

• A muddy patch between railroad tracks in the center of the main street in an Idaho town.

• Irrigation ditches dug by farmers in Nevada, California, and other western states-some of which have been in use since the turn of the century.

Once federal or state officials designate property as a wetland, if the owner wants to do anything with it he must first apply for a permit from the Army Corps of Engineers. Corps regulators decide whether they will issue the permit, and, if so, whether the owner will have to set aside other property to make up for (“mitigate”) the lost wetland. The corps gained this authority from Section 404 of the 1972 Clean Water Act, which allows it to regulate “the discharge of dredged or fill material” into “the navigable waters of the United States.”

People who fill wetlands without obtaining a permit face fines and prison sentences. Perhaps the most famous case involves Hungarian immigrant John Poszgai. A mechanic in Momsville, Pennsylvania, Poszgai purchased a piece of property to build a garage. After removing tires and automobile parts that had been dumped on the land three decades earlier and hauling in soil to level the property before construction, he was convicted of 41 violations of the Clean Water Act, sentenced to three years in prison, and fined $200,000 for illegally filling a wetland. Neither federal nor state regulators had listed his property as a wetland before he started to clear it. As a July ’90 Audubon article stated, “Dumping dirty old tires into a creek bed does not seem to violate the Clean Water Act so conveniently as dumping new fill into an old wetland.”

Many other wetlands cases involve farmers and ranchers. In Missouri, when corn farmer Rick McGown repaired a sunken levee on his property, he was accused of illegally filling a wetland after an Army Corps official found a “cattail” growing on the land. McGown claims the plant is a strand of sorghum he planted. If the corps wins its suit, the farmer will have to give the government one-third of his farm and pay a $7,500 fine.

After a normal spring thaw, the Idaho transportation department wanted to get rid of the mud-and-gravel mixture that collects on the sides of snowplowed dirt roads. Farmer Bud Koster allowed the department to dump this muck onto a plot of pasture. The corps later ruled that Koster had illegally filled a wetland and told him to either convert other property to a wetland, remove the dirt, or pay a fine. The case is still pending.

In Nevada, a rancher who repaired irrigation ditches dug 75 years ago has been accused of “redirecting streams.” Farmers in North Dakota have been charged with illegally destroying habitats for migrating birds when they drained potholes in their fields. In California and Maryland, regulators halted construction of low- and moderate-income housing projects after charging that the construction sites were functioning wetlands. A recent Army Corps ruling suggests that when owners pull tree stumps from their land, if any chunks of dirt fall from the stumps, that may constitute filling a wetland. As we’ll see, expansive government wetlands policy not only violates the rights of property owners but defies common sense.

In 1977, the Carter Administration sought to reduce wetland destruction; it began by asking federal agencies to define uniformly what they planned to protect. The Department of the Interior, the Department of Agriculture, and the Environmental Protection Agency jointly defined wetlands as areas flooded or saturated with ground water often enough that, under normal circumstances, they would support “vegetation typically adapted for life in saturated soil conditions.” The definition emphasized that wetlands were limited “to only aquatic areas”-in other words, swamps, marshes, or bogs.

But by the mid-1980s, the government definition started to expand. The Corps of Engineers developed a new set of guidelines to help distinguish between plants that grow in wet soils and dry soils. The guidelines, which set up five classifications of plants, were intended as a measuring device, not a basis for policy. But corps officials noted that this checklist could provide ambitious regulators with an expansive new definition of wetlands.

That’s what happened. The guidelines evolved into the Federal Manual for Identifying and Delineating Jurisdictional Wetlands. Wetlands, which were previously delineated by the functions land performed, are now defined by technical factors: the wetness of the soil (its hydrology), its chemical properties (whether the soil is “hydric”), and the varieties of plants that grow there (hydrophytic vegetation). Theoretically, land is supposed to meet all three criteria before it’s declared a wetland, but the burden of proof is on the property owner. And the parameters are extremely elastic.