The Peat Repeat

Rep. Jimmy Hayes (D–La.) will soon reintroduce a bill that could clear up one of the murkiest problems facing property owners: What is a wetland?

The federal government can now consider property "wetlands" if it is under water for as few as seven consecutive days a year. Environmental groups admit that most of the private property east of the Mississippi River meets at least one of the three wetlands tests. (See "The Swamp Thing," April 1991.)

Currently, four federal agencies—the Soil Conservation Service, the U.S. Army Corps of Engineers, the Environmental Protection Agency, and the Fish and Wildlife Service—can deny private property owners permission to alter wetlands. Regulators protect irrigation ditches on farm land as aggressively as they guard sensitive habitat for threatened waterfowl.

Former Vice President Dan Quayle had attempted to narrow this definition, excluding farm land and other property that serves no wetland functions. But he was stifled by then-EPA Administrator William Reilly, who kept the broad definition.

Hayes hopes to change that. This session he will reintroduce, with a few minor changes, the Comprehensive Wetlands Conservation and Management Act. This bill will make the Army Corps the nation's sole federal wetlands regulators.

The bill sets priorities for regulators by dividing "wetlands" into three categories. Type A wetlands have "critical" ecological value; the owners of Type A wetlands won't be able to alter them in any way. Hayes recognizes that such restrictions on property ownership constitute a "taking" under the Fifth Amendment of the Constitution. Under the Hayes bill, the government must either purchase Type A wetlands at fair market value or the owner may keep the land and submit to Army Corps regulations.

Type B wetlands have some environmental value but can be altered if the owner gets a permit from the Army Corps. And Type C wetlands include all previously tilled farm land; any roads, dikes, levees, or other flood-control structures; and all stock ponds or irrigation ditches. Such wetlands will not be regulated by the federal government.

When Hayes introduced a similar version of the bill in the 102nd Congress, he had 176 cosponsors. That bill, H.R. 1330, was enthusiastically embraced by farming and property-rights groups. Spokesman Steve Kearney says that Hayes will introduce the current version probably this spring.