Protecting Property Rights, Preserving Federalism and Saving Wetlands

Policy Reports | Energy and Natural Resources

No. 291
Wednesday, October 25, 2006
by Daniel R. Simmons, J.D. and H. Sterling Burnett, Ph.D.

Executive Summary

The U.S. Supreme Court missed a recent opportunity to give landowners, federal regulators and the states clear guidance about which wetlands are under federal control and what actions can be taken to protect and/or develop them. Some federal court decisions have limited the federal government's power over isolated wetlands, but their rulings have been inconsistent. On June 19, 2006, in a narrow 5-4 decision, the Supreme Court further clouded the issue, leaving lower courts to set limits on a case-by-case basis.

The federal government historically viewed wetlands as an obstacle to progress and a nuisance. Swamps bred mosquitoes, which spread malaria. As a result, the United States has lost more than half of all the wetlands that existed in colonial times. However, wetlands are not just public nuisances. Many provide economically and ecologically valuable services - such as water filtration, flood mitigation and habitat for species - which were not fully understood or considered until relatively recently.

The 1972 Clean Water Act expanded federal authority over "navigable waterways" to prevent pollution. But with a vague definition of navigable waterways, the Clean Water Act was vulnerable to wide interpretation and soon very little water was left outside the scope of Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (the Corps) regulation. For example:

  • A Supreme Court ruling radically expanded the Clean Water Act to encompass regulation of any discharge into wetlands that eventually drain into navigable waterways.
  • The Migratory Bird Rule became known as the Glancing Goose Test because federal regulators claimed that if a migratory bird glanced down and spotted a small pond, soggy ground or a temporarily flooded pasture, even if it didn't stop, federal control and regulations extended to that water.

As a result, the Corps and EPA have pursued civil and criminal prosecutions for small, technical violations of the Act in order to intimidate property owners and developers into compliance, although the complexity of the regulatory process and the unsettled state of the law makes compliance difficult. In the process, they have arguably stepped on the constitutional prerogatives of the states to control land use within their borders and the rights of individuals to control their property. For instance:

  • When a Baptist congregation in Florida wanted to build a new church and parking lot, federal officials intervened, usurped local authorities' power to regulate development and refused to grant the church a permit.
  • A Maryland developer created several wildlife ponds on his land and was found guilty of violating the CWA by filling wetlands; he was sentenced to 21 months in federal prison and fined $4 million.
  • A father and son both spent 21 months in federal prison for filling a dry ditch - which the government argued was a seasonal wetland - with clean sand in order to build the son's home.

The current position of the Corps and the EPA goes beyond clear congressional intent and, arguably, what the Constitution allows. But even for those wetlands over which the federal government has legitimate authority, evidence indicates that states and private parties are more than capable of protecting them. For example:

  • Ducks Unlimited has preserved over 10 million acres of wildlife habitat; on the East Coast, about 11,000 private duck clubs protected 5 million to 7 million acres of wetlands from destruction.
  • Over 1,200 land trusts have protected more than 6.2 million acres through donation or purchase of the land in fee simple or conservation easements.
  • Under the U.S. Fish and Wildlife Service's Partners for Wildlife Program, landowners restored 48,800 acres of wetlands in 2001 and 65,000 acres in 2002.

With so many ways to protect wetlands, there is ample reason to believe they will continue to receive protection, even if the regulatory scope of the Clean Water Act is limited.

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