The concerns of those who have experienced the brute force of wetlands regulations are not going unheard. (See “The Swamp Thing,” Apr.) Currently pending in the United States Senate is S. 50, the Private Property Rights Act, counting over 30 senators as its cosponsors. This bill ensures that agencies such as the Corps of Engineers establish appropriate procedures for determining whether or not their regulations tread on an individual’s private property rights.
The existing wetlands regulations are issued under the authority of Section 404 of the Clean Water Act. And yet, by undermining property rights, these regulations may well discourage the kind of environmental stewardship necessary to get “clean water.” A case in point would be the rancher who attempts to repair a washed-out fence. Aggressive application of Section 404 could prevent such repair, even if that repair prevented cattle from invading a neighbor’s property or damaging a sensitive riparian area. In this case, the rancher who keeps his property in good shape is rewarded by fines, imprisonment, or both. It is a ludicrous and counterproductive way to achieve environmental protection.
S. 50 will help prevent such ill-conceived regulation. The act forces federal agencies to evaluate their regulations, identifying those that could be rewritten to impose less on private property, and requiring that “just compensation” be offered for those that can’t. The result is less litigation between individuals and their government, reduced costs to everyone involved, and added respect for a constitutional right on the part of government regulators.
The seven federal agencies that administer, rule, regulate, and tinker with real property meeting their individual criteria for “wetlands” have created a situation in which only Franz Kafka would be totally comfortable.
When I have a client who is facing wetlands problems, I usually explain the future in terms of a card game with the United States government. The government begins by telling you:
“YOU will now play the Wetlands Game with us. We will tell you when, where, and how long you will play.”
The government will shuffle the cards and deal them each time, and we reserve the right to not tell you the rules we play by until each hand is completed. We further reserve the right to change the rules retroactively and tell you that a move we previously approved was an error and rescind that approval.
“We also reserve the right to not tell you how many players there are, who they are, and what rules they play by.”
“You will put everything you own into the pot, including your property, your time, and your peace of mind.”
One clarification: Lest anyone mistakenly think that the compensation for takings Mr. Henderson cited is automatic, let’s set the record straight: When the government imposes property-use restrictions due to the presence of “wetlands,’’ the only people who receive compensation for the reduced value of the land are those who sue the federal government and win. There is no automatic compensation because the government believes the wetlands regulations are more like zoning restrictions than condemnations. Unless you prove the taking in a federal court, the government gets the property free.
Tell me when we’re having fun.