The Swamp Thing

Under new federal policy, wetlands need not be picturesque, ecologically valuable, or even wet.

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 Morrisville, 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.

Bernard Goode, who headed the Army Corps's 404 regulatory office in Washington, D.C., from 1981 to 1989, helped develop the delineation manual. He says that when the government was developing its uniform definition of wetlands, each agency expanded the definition by drawing the parameters as broadly as possible. For instance, the Soil Conservation Service included hydric soils, which are moist enough to impede crop growth but not necessarily saturated or flooded, as wetland soils. The manual also says that soil that is inundated for as little as one week each year (the typical run-off period for farmland in a river basin or valley) qualifies as wetlands.

And the EPA insisted that facultative vegetation—plant life which by definition appears in uplands as often as in wetlands—be included as a wetland-defining parameter. Robert Pierce, a former Corps of Engineers regulator who helped write the enforcement guidelines for Section 404, notes that in some regions of the country, Kentucky bluegrass is facultative. In Pennsylvania, regulators consider ash trees and dogwoods to be wetland plants. The most common facultative plant, says Pierce, is the red maple tree, which can grow in standing water or on top of a mountain.

As a result of the new definition, the Soil Conservation Service estimates that as many as 70 million acres of existing farmland (privately owned, of course) by could be considered jurisdictional wetlands, subject to federal control. Wildlife advocates and property developers, the Los Angeles Times reports, estimate that most of the eastern half of the United States fits the new guidelines. One environmental policy analyst I talked to cited an estimate that defined 40 percent of drought-stricken California as jurisdictional wetlands; San Francisco attorney Mark Pollot, who defends property owners in wetlands cases, contends "That may even be an underestimate."

Pollot notes that the technical definition simultaneously expands the authority of environmental regulators and makes their jobs easier. Before the manual guided regulators, he says, delineating wetlands was neither a simple nor a speedy process.

"Figuring out the hydrology of land is the most difficult thing to do," he says. So regulators took a short cut. Now any land with a preponderance of wetland plants—even facultative plants—can be designated as wetlands "without ever looking at the hydrology," Pollot explains. "You can dig around and find hydric soils even if that land hasn't been wet for ages. The manual will allow you to assume that the land is actually wet."

The expanded definition has contributed to already-inflated estimates of wetland losses. No one seems to know how many acres of wetlands disappear each year, although guesses abound. The Audubon Society claims we lose between 300,000 and 500,000 acres yearly; the Office of Technology Assessment says 275,000 acres. The American Farm Bureau Federation says those estimates are based on data collected in the 1950s and 1960s (when Army Corps flood-control projects were at their peak) and don't reflect current wetland losses; the Farm Bureau estimates losses of around 100,000 acres annually. When asked for a current figure, John Meagher, the EPA's deputy director of wetlands policy, admits that the most valid data was collected decades ago, but "we probably lose from 300,000 to 400,000 acres a year."

A recent EPA study casts doubt on the higher estimates. A 1989 agency study found that a 1985 law cutting off subsidies from farmers who drain and till wetlands ended almost all wetland conversion in six of the seven states studied. The Farm Bureau also estimates that around half of current annual losses come from the erosion caused by flood-control projects that prevent cities like New Orleans from being washed away every few years.

Inflated loss estimates bolster the Bush administration's policy of "no net loss" of the nation's wetland base—a longtime goal of EPA chief William Reilly. In 1986, while head of the Conservation Foundation, Reilly spearheaded the National Wetlands Policy Forum, an advisory group to the EPA composed of elected officials, government regulators, environmentalists, and agricultural interests. In 1988, the forum issued a report urging an initial policy of "no net overall loss" and eventually an increase in the quantity and quality of wetlands.

Candidates George Bush and Michael Dukakis signed onto the forum's agenda. President Bush subsequently endorsed no net loss in his first State of the Union address, and set up a task force to implement the goal. The no-net-loss policy means that whenever a property owner fills a wetland, he must convert an equal amount of property into wetlands. It doesn't matter what functions the original wetland performed The property owner has to make an acre-for-acre trade.

Although the Bush-appointed task force hasn't yet completed its job, applications of the no-net-loss policy already exist. To preserve 600 acres of marginal wetlands in Staten Island, New York, taxpayers will have to reimburse property owners $400 million for their land and install $1 billion in storm drains.

And when a government project alters wetlands on public property, the wetlands have to be replaced—no matter how the restoration of the wetlands affects the rest of the local ecology. A riverside road-construction project near Savannah, Georgia, filled four acres of tidal marsh. To replace the filled wetland, officials cleared an adjacent mature pine- and palm-tree forest, excavating the forest floor to the mud line. They also clear cut vegetation from an island on the other side of the river. When he called for no net loss, says former regulator Pierce, "George Bush didn't know what he was getting into."

From providing wildlife habitats to controlling floods, wetlands can play important—sometimes crucial— ecological roles. Wetlands advocates, however, say wetlands perform functions that people—or other natural processes—can't replace. Preservationists end up engaging in a form of bait-and-switch: They argue that wetlands provide unique, essential ecological benefits, but we don't know enough about the functions to quantify them and set priorities. With imprecise knowledge, the "safe" answer, ecologically speaking, is to define wetlands so broadly that everything's included.

Says the EPA's Meagher, "It's really hard to [set] priorities from a functional perspective, to say that fish are more important than ducks, more than mammals, more than water quality."

Meagher says that priorities must depend on "the science of landscape ecology," based on functions that are determined at each site. Before considering priorities, regulators must look beyond the immediate area. "You can't make these decisions without considering what else is going on in the ecological system," he says. Officials would like to decide based on whether property serves wetland functions, he says, but "functions are complex," and regulators may not know which ones are most valuable. So any human activity that affects wetlands becomes questionable.

But there is no pure "science of landscape ecology," nor a "scientific" definition of wetlands, responds Bernard Goode. He says that "wetlands are and will be whatever combination of soils and water the government decides." The definition will always be determined politically.

As a result, in Pierce's words, "What is being called a wetland is functionally not different from uplands." The new definition fails even to distinguish between natural and manmade wetlands. A rice levee falls under the same jurisdiction as a swamp.

There are alternative policies that can preserve truly functional wetlands, as well as good sense. Goode suggests basing the delineation of wetlands on one parameter: the presence of enough surface water for a sufficient amount of time to support typical wetland plants. To meet this criterion, the water table—not merely a random puddle—must be at or above the surface for 30 days during the growing season. He says this degree of saturation will once again limit wetlands to truly aquatic areas—swamps, marshes, and bogs.

Now a private consultant who helps property owners and government regulators identify wetlands, Goode has attempted to sway officials in the regulatory agencies and with the wetlands task force. He says some members of the task force seem sympathetic, but he sees them as "the last hope in the executive branch to bring some reason and fairness" to the problem. Since leaving the corps, Goode says he's become something of a "crusader for landowners."

Attorney Pollot suggests his own alternative to acre-for-acre mitigation. "Is it necessarily true," he asks, "that a 15,000-acre wetland you use for a flood-control project needs to be replaced by another 15,000-acre wetland if a 100-acre or a 500-acre or a 1,000-acre wetland will do the same function?"

If the EPA or the Department of the Interior obtained authorization from Congress to swap publicly held parcels of land for privately owned wetlands of comparable value—instead of taking the property outright—environmental regulators could preserve the valuable functions of wetlands without strapping property owners and other taxpayers. Land swaps would require federal officials to quantitatively assess wetland functions and set priorities. But "wetlands restoration," Pollot concludes, "doesn't have to be expensive."

So far, federal agencies won't endorse these less-complicated proposals. Corps spokesperson Edward Greene says his department defers any priority-setting or other policy changes to the White House task force. The EPA's Meagher says his agency doesn't have enough information to set priorities or set aside comparable plots of land. So it will proceed with the existing policies.

Undoubtedly, restricting wetland regulations would require government policymakers to limit their own regulatory power—bad news for the Army Corps. The corps needs a new bailiwick, now that building dams is out of style, and environmental activism looks like just the thing. In February 1990, Lt. Gen. Henry Hatch, commander of the corps, officially endorsed the no-net-loss policy, declaring that his agency should become "the nation's environmental corps." Audubon writer John Madson notes, "for the Corps, [environmental projects] mean job security."

Meanwhile, the Washington rumor mill holds that the EPA's Reilly wants to replace embattled Interior Secretary Manuel Lujan. When the White House task force finally settles on a definition of wetlands, and on which agencies will regulate them, the EPA could lose much of its authority. The Department of the Interior could become the logical home for most wetlands regulation. And at Interior, Reilly would supervise the National Parks Service, the Bureau of Land Management, the Fish and Wildlife Service, and become chief enforcer of the Endangered Species Act—a sizable fiefdom for an ambitious regulator.

Still, Pollot believes that rationality will return to wetlands policy once taxpayers start routinely paying large sums to compensate for taking private property. Declaring property a jurisdictional wetland can eradicate almost all its market value—entitling the property owner to compensation under the Takings Clause of the Fifth Amendment. Since an estimated 80 percent of jurisdictional wetlands are privately owned, he says, payouts "could run into staggering amounts."

Last year, the U.S. Claims Court awarded a real-estate developer $2.6 million and a mine owner $1 million to compensate them after the Corps of Engineers defined their properties as wetlands. In each case, corps actions reduced the market value of the properties by more than 95 percent. In a surface mining reclamation case, another claims court ruling awarded more than $100 million to a plaintiff.

"If you go to Staten Island or Manhattan, and [force people] to shell out a couple of billion bucks to buy up marginal wetlands," Pollot says, "you are much more likely to ask the most fundamental question of all: Is this really worth it?"

Rick Henderson is assistant managing editor of REASON.